Please explain my custody order
Dear Mrs Macaulay,
I saw your response to the reader in last week’s all woman and I have somewhat of a similar problem. I’m confused about what my court order allows me to do. I went to the family court to seek custody of my daughter who was born in America. What I’m confused about is whether the order I got grants me full custody, sole legal and physical custody, or joint custody. See I saw all these terms on the Internet and none of them are in my order. My order reads in part “Upon application for custody of the child… it is thereby ordered that custody, care and control is granted to the mother. It is further ordered that liberal access be granted to the father…”
Now, I want to know if this means that I have the sole authority to make all decisions regarding my daughter. Can I do all the things you mentioned to the mother last week – eg apply for a passport and travel with this order without anyone asking for the father’s permission? Or does it mean that because he has “liberal access”, I have to share legal decisions with him?
-Still confused
Dear Still Confused,
Thank you for your letter. I am sorry that you are confused about the import of the order made in your favour by the Family Court, so let me try to set your mind at rest.
Your application was for the “custody, care and control” of your daughter to be be granted to you.
The court granted your application and granted “liberal access” to the father. This means that you have sole legal custody of your daughter, plus care and control of her.
You solely therefore have the legal right to make all decisions regarding her upbringing and welfare, including whether or not she should travel or not. You and no one else, after the grant of the order, have the right to apply for her passport. You alone, can make all decisions affecting her life, unless you decide to consult with another person or grant to that person authority to decide about or to do some act for your daughter related to her welfare and/or on your behalf.
The grant of ‘liberal access’ to her father is rather imprecise and could lead to disputes between you and he as to the dates and times of his access. When no specific terms for access are fixed by the order, and there is a lack of ‘friendly and respectful’ dealing between the parents, it leads too often to accusations and counter accusations of unreasonable refusals and unreasonable demands. These would then make it necessary for further applications to be made to the court by either the mother or the father, to make a decision on the accusations and then fix the periods of access with particularity.
Remember that the father in such circumstance of disputes about his access could use his allegations that his attempts to exercise his right of access or to fix the terms with you have been unreasonably rebuffed by you and you have denied him such a right. He could apply for a variation of the court order to fix definite days and times for his access or to apply for joint custody. In such an event, he would certainly be granted the former, that is, that the particulars of his access will be spelt out. As to the latter, there is no certainty that he would be successful, as the court would have to be satisfied on proof that this would be in the best interests of the child. I have mentioned the possibility of an application to vary being made if disputes arise in order to encourage you and all parents who have been granted custody but with the order for access being made in the same imprecise term, ‘liberal access’ – which is often a recipe for disaster – to be scrupulous in arranging reasonable days and times for the exercise of such access. A dissatisfied parent will be angry and bitter but a satisfied one is unlikely to be so.
It is always better for the child if there is no rancour evident in the dealings between her parents.
I hope you you will no longer be confused about the meaning of your order. All best wishes to you and your daughter.
Correction
In my column last week I stated that the fact that a Jamaican mother registering her child who is a US citizen by birth as a Jamaican citizen would in effect, cause a renunciation of the child’s US citizenship as that country does not recognise dual citizenship. This was stated in error and I apologise if I misled anyone. Thanks to Dr Lloyd Barnett for bringing to my attention that such a child will have dual citizenship and could be the lucky possessor of two passports.
Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.
