June 17, 2018 is Father’s Day and I thought it quite timely to discuss the matter of child custody. In Jamaica, there is a perception that mothers are the main caregivers and in cases where parents separate/ divorce, mothers usually believe they should get sole custody of the child and in some acrimonious instances, refuse the father from visiting their child/ children.
The Children (Guardianship and Custody) Act allows that mothers and fathers have equal rights to a child when it comes to custody, and both have equal right to apply to the courts in respect of any matter affecting the child. Section 7(1) of the Act states that “the Court may, upon the application of the father or mother of a child, make such order as it may think fit regarding the custody of such child and the right of access thereto of either parent, having regard to the welfare of the child, and to the conduct of the parents, and to the wishes as well of the mother as of the father”. The law is clear in outlining that both parents are equal and either parent can make an application to the court. The court makes its decision based on what is in the best interest of the child. A decision in “the best interest of the child” requires considering the wishes of the child’s parents, the wishes of the child and the child’s relationship with each parent, siblings, other persons who may substantially impact the child’s best interests; the child’s comfort in his home, school, and community; and the mental and physical health of the involved individuals.
There is a common misconception that only fathers pay child maintenance, but once the child resides with the father, he can apply to the court for the mother to pay maintenance for the child. To make an application for custody, care and control of the child, a father should seek the assistance of an Attorney-at-Law, who would then file the application in the Parish Court or the Supreme Court. The application that is filed includes an affidavit from the father, outlining why it is and will be in the best interest of the child for him to have custody, care and control. Information on his home environment as well as plans for the child’s education and religious upbringing. AA summons will be served on the mother for her to appear in court to contest the application. Both parties will appear before a judge, where the case will be heard and decided.
There is no question that fathers play an important role in their children’s lives and should be encouraged to have regular interactions with their children and where this is being denied, seek the assistance of the court.
Happy Father’s Day from the Law Office of Abi-Gaye White-Thomas.
Abi-Gaye White-Thomas B.A., LL.B (Hons)