MANY men are of the belief that court decisions regarding maintenance, access and custody are skewed towards women in the legal system, as stories still abound about courts still adopting the 19th century Tender Years Doctrine, which held that when all other factors are equal, custody of a child of tender years — generally under the age of 13 — should be awarded to the mother.
And though many countries, including Jamaica, have eliminated this presumption, fathers still complain about a court system that operates in keeping with the Tender Years Doctrine tenet — “To grant custody of a child to a father is to hold nature in contempt...
But according to the law in Jamaica, the best interest of the child is always paramount, and not the gender of the caregiver.
As such, this week we share tips for fathers for how to navigate the system when it comes to custody, access, and maintenance.
Both parents are obligated to maintain their child
The Maintenance Act of 2005 gives an obligation to both parents to provide for a child under the age of 18, an obligation which extends to children over 18 with a mental and/or physical disability or who are enrolled in tertiary studies.
While most maintenance matters in Jamaica are brought by mothers as they usually have de facto custody of their children, attorney-at-law Sashakay Fairclough said on rare occasions she has seen where if the mother is better off financially than the father, but the father has primary custody of the child, he may bring maintenance proceedings against her.
Fairclough said the best way to do so would be to consult an attorney who deals with family matters, but noted that many individuals in Jamaica cannot afford attorneys and as a result, the process has been simplified in the Family Court.
“The person seeking maintenance can go to the local Family Court or parish court (outside of Kingston) and speak to the clerk of court and have them file the documents on their behalf. The applicant will be asked questions by the clerk including how much they are seeking as maintenance and their occupation along with the occupation of the respondent — the person being asked to pay maintenance. A summons will then be issued for the said respondent to appear in court on a specific date,” she explained.
In the case where a mother is the respondent, once she is served, if she appears at the appointed time, the judge will ask her questions about her job, salary, etc. Normally, respondents will be asked to present documentation if they are in salaried positions and receive payslips or some other proof of payment.
“The judge will then review the documents and make an order as to how much they should pay. Generally, as well, they are asked how much they can afford to pay weekly or monthly. Overall, the judge will try to be as reasonable as possible in light of the circumstances of the child and the financial situation of the respondent,” she explained, pointing out that the process is not as intimidating as many fear.
No parent is favoured in child custody
There is no presumption in the law which favours one parent over the other.
“People always assume the mothers have more rights than the fathers here and this is not the case at all,” Fairclough said.
The attorney explained that the Children (Guardianship and Custody) Act is applicable in these court applications and empowers the court to make orders as to whom the child should remain with primarily and whether or not the other parent should have right of access.
“To determine this, the court must consider the general welfare of the child and the conduct of the parents, in other words, it must consider, in all the circumstances, who the child will be better off with primarily. Many assume this is the mother; however, it is not, and cannot be the mother in all circumstances. There are some fathers who seek custody as they believe they provide a more stable environment for the children,” she said.
Custody rulings are not set in stone
It should be noted that no matter regarding children is set in stone in the courts, thus the clause “liberty to apply” will be added to the court order, which means that either parent can apply for changes to the order if they are not satisfied with the arrangement.
No parent has more rights than the other if there isn't a court order
No one parent of either gender has a legal right to custody of a child over the other without a court order stating thus, even if the child has been living with that parent for most of the time. The same goes for withholding access to the other parent over issues like maintenance.
The issues of legal custody, care and control, and access have to be determined by a court on an application by either father or mother. If this has not occurred, then both parents are entitled to the right of custody, access and care and control of their children. Neither parent's right supercedes the other's, unless a court, having jurisdiction in such matters, makes an order to the contrary.
The process for applying for custody or access
Fairclough said individuals seeking custody should follow the same process as those seeking maintenance; however, if the person cannot afford to see an attorney and put the matter in the Supreme Court, he or she should go to their local parish court or Family Court and speak with a clerk of court. In doing this, she said the other party will be served the summons to appear in court on a specific date.
The person seeking custody will have to write what is known as an affidavit explaining why they should be granted same, and both parents will then appear in court and be given the opportunity to speak with the judge.
“The parties, that is the parents, literally stand there and explain to the judge why they should get custody. The judge may ask how much money they each make or query the intricacies of their homes and personal lives, just to see who the child may be better off with. Issues of joint custody and sole custody are discussed, but the judge will know which one is being applied for when he peruses the application of the parent seeking custody. Many are OK with joint custody and this is commonly awarded; however, the court's job is to consider the welfare of the child. If one parent objects to joint custody they have to give a good reason why. I have heard many things from potential molestation to child abuse and random accusations,” she said.
Fairclough maintained that whatever is alleged, it is the court's job to check the basis of these accusations, if presented, before making a determination.
If the other parent is unavailable for a summons to be served (whether they are overseas or can't be located), the applicant can make an application for substituted service. This could involve a notice in a national daily newspaper; a copy of the application posted to a family member with whom the other parent is close to who is likely to bring it to their attention, or service on a member of their family with whom they have or are likely to have regular contact.