Mom wants money but is denying dad access

All Woman

Dear Mrs Macaulay,

I am a current citizen of the United States and two of my four children live in Jamaica with their mother. She wants me to have access to them only when I visit Jamaica. I have been maintaining both since they were born, although I was unsure whether the second child was mine. I recently did a DNA test and it clarified that both kids were indeed mine. I went to the Family Court in Jamaica in 2016 and filed for access, but she then filed for maintenance, stating that she wasn't getting enough and wanted more. She is doing everything possible for them not to visit so she can pocket the money.

I went and saw the kids recently and they look very malnourished. She doesn't want my mom to purchase things for the kids, she just wants the money. The last statement she made was, “You will have to wait till they are 18 to make their our decisions”.

What can I do to get access to my children or have them be here with me to meet their other siblings?

Your letter is quite disturbing in that you say that you applied to the Family Court for access to your two children who reside in Jamaica with their mother, but I cannot understand why you did not apply for custody and access or joint custody and access. Then you did not state what happened to your application and what decision was made on it. You also did not say what happened to the mother's maintenance application and what evidence was provided during the hearings of her applications.

I assume both were heard together and you proved to the court that you had always provided for the children and that you had not been granted any or any proper access to them and that you asked for what kind of access you wanted. It seems that no order was made for you to have access to these your children. If I am correct in my assumption, then this is most surprising because unless it is proved to the court that you are an unfit parent or one who is likely to endanger the children, access is always ordered so they can spend time with the parent who does not have care and control of them.

Regarding their maintenance, evidence must be produced to the court of the children's needs and the costs, and this is either split 50/50 if the parents are in apparently similar economic situations, or close to this. If your financial situations are disparate, then whoever has more is generally ordered to pay more. The percentage of the parents' respective portions should be determined by the court on the evidence produced by each party of their financial income and assets. You have given no hint about what happened in court and what the decisions were on your respective applications.

So what should you do? You should, of course, make a proper application to court for custody of and access to your children, or custody, care and control of them if you wish to have them reside with you. If you only wish access, then you can apply for custody and access. Custody will give you the legal authority and burden to take part in every important decision in your children's lives; for example, the school they should attend, church, whether they should undergo any operations, etc.

Care and control is when the children ordinarily live day-to-day with both parents in a stable family setting, or with one parent when they do not live together and that parent has them most of the time. The other would then be entitled to access.

I would suggest that you make your application to the Supreme Court rather than the Family Court. It is a superior court of record rather than a summary court of justice. This is not to imply that the orders of the Family Court are not as effective as Supreme Court ones. In fact, in matters of this kind both courts have concurrent jurisdictions. I am suggesting that you use the Supreme Court jurisdiction because you live abroad and the filing of your documents and times for reply and especially the fixing of the date(s) for hearing would be more suitable for you and can be fixed to fit in with times when you can be in Jamaica. There is also more time to ensure that all your issues are dealt with, as your attorney-at-law has to decide and insert how long he or she anticipates the hearing of the application would take of the judge's time in chambers, which are quiet and enclosed.

I hope I have assisted you to decide to proceed to assist your children to enjoy their right to spend time with you and with their other siblings. There are many judgements wherein it has been held that this is their right and is in their best interests. The statement therefore of their mother that you will have to wait until they are 18 years of age to make their own decisions is a denial of these children's rights to not only know who their father is, but also spend time with him and be a part of his family.

So please go to court. Bear in mind that your children may have been encouraged to believe that it is you who does not wish to spend time with them in your home, or they may just themselves conclude that this is the case if you do not act.

Engage the services of a family/child law attorney-at-law to assist you to prepare and file your application and fix the hearing when you are able to be in Jamaica.

All the best wishes.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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