Dad distraught mom alienating son
Dear Mrs Macaulay,
My son’s mother and I always had a good co-parenting relationship, up to recently when she got married. Our son is eight. Before her marriage, I would have him every weekend, and half holidays, and I paid maintenance and also bought other supplies for our son. Since her marriage I realise that she is attempting to alienate the child from me, and is interfering with my visitation rights. I have not seen my son since July, when she came and got him early. She also insists that my son call his stepfather dad, and my son told me that they all plan to migrate soon. What are my legal options to keep my son here, and also retain our relationship? We have never been to court, everything we did in the past was amicable.
The mother of your son is guilty of the gravest and most injurious action against her son’s legal and moral rights to have access to his biological father and have a regular, close and continuous relationship with him. She is legally bound to respect her child’s rights, and not to deny such rights, but to observe her obligations in this regard. Her conduct could cause great resentment and emotional and psychological confusion in her son, who at eight years old knows fully well who his father is, and with whom he had been so interacting.
Her insistence that her son calls her husband dad, does not make her husband so. It is her husband’s conduct and interaction with your son which would determine what the relationship between him and his stepson turns out to be, and not her stupid and ill-conceived insistence that your son call him “dad”. She ought to be mature enough to know that no one can force anyone else to feel a certain way towards her choice of a person to have a certain kind of relationship. It is so ridiculous, but not in a funny way, but in a disastrous one. She clearly is more concerned about showing her husband how much she cares for him to the detriment of her son.
In addition, your access to your son and your provisions for his maintenance and development were matters agreed by you and his mother together for your child’s benefit and in his best interests. By her going and removing him from you early in July during his time with you and her subsequent refusal (which she has no right to do, in fact or in law) for you to have your periods every weekend and one-half of his holidays since then, has selfishly caused a rupture in her son’s life which cannot be allowed to continue.
Your letter indicates that you were a caring and attentive father and the mother has, and I repeat, selfishly and unilaterally, brought your agreed co-parenting agreement and arrangements to an end. She has demonstrated to you and to her husband by doing so that she is not a person who can be trusted to keep her word and her promises. This is clearly not what any party in a marriage should demonstrate to her spouse or indeed to anyone else.
Your mistake was to trust in her word and believe that she would uphold your agreement to co-parent your son during his minority. Now, you must make use of the law and bring a sense of security back into your son’s life by becoming again present in his life as you were. The law recognises your right to do so and you must make use of it and bind his mother to meet her obligations to her and your child. The law is the Children (Guardianship and Custody) Act. The mother must know that she cannot just erase you from his life.
You must therefore go as quickly as possible, on any day, to the Family Court for the parish in which you or your son resides and there inform the clerk that you wish to apply for the following:-
- Legal custody of your son, which could be solely granted to you because of the mother’s actions, or jointly with her, if she is prepared to abide by the legal obligations which she must obey, and that she attends sessions to learn and understand what they are.
- Specific access as had been agreed and practised, of your son spending every weekend with you and one-half of all his holidays commencing with him spending this 2024 Christmas holidays, with him being with you for the Christmas and Boxing Day half, and for all subsequent school holidays, that he spends the first half with you. For national holidays specific ones must be assigned to you and her in their order, and a specific order be made about the celebration of his birthday and your birthday and hers must also be clearly stated in the order with a direction that either of you may request of the other for him to spend a specific day or days with you and her for a special personal or familial event if this is to occur within the other’s time with the child and that consent for this should not be unreasonably withheld. If you wish to have your son live with you constantly then you must add an application for ‘care and control’ to that for sole or joint custody.
- That your provision for his maintenance be specifically spelt out in the order and that you make your payments to the court rather than directly to her. Paying to the court’s office shall provide you with irrefutable proof of your payments.
- That neither of you or any other person should take the child out of this jurisdiction without the permission of the court — this would mean that an application must be made and served on the other party for the permission of the court to allow your son to travel out of the island. The court will have to be satisfied with the reason for the trip and accept the arrangements made for his stay and safe return back to the island. With such an order made, you should get a certified copy of the order to the Immigration Authority and periodically remind them that it is still in force, and if you learn that the mother or stepfather, or both together, are about to leave to island, you should call the authority and warn them of this fact, reminding them of the order.
You must also make sure that you have an original sealed copy or a certified copy of the order in your possession, and you can also ensure that your son also has a certified copy which you must explain that he must keep in a very safe place, and explain to him what it means and how it can assist him in ensuring that his right to your attention and to be with you are respected. You can of course have your application prepared by going to the court yourself in person, which will ensure that your applications are prepared on the same day and that the service on the mother be done by the bailiff of the court, and then you may wish to retain a lawyer to appear at the hearing on yours and your son’s behalf.
I hope that I have made the position clear to you that you and the mother have rights and obligations towards your son, and neither of your parental rights are superior to the other’s. Once you have the orders made by the court on your application, the mother must obey them, and if she does not and breaches them or has her husband do so on her behalf, you must report it to the clerk of the court for action to be taken against her or him or them, by being arrested on a warrant and brought before the court to answer to the judge about the breach. He, she or they could end up in jail for a period of time as the judge determines is appropriate.
But most important, and which is in the best interests of your son, is for you to act and return security and certainty again to his life and give him your love and the comfort of your presence in his life again. These are vital for his wholesome development.
So please act promptly. All success and the very best to you and your son.
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.
