MCGREGOR
I THOUGHT about commencing this article by stating that "Fathers have rights, too". However, my research has confirmed that they simply have rights, and that there is no need to add the word "too".
The current law as set out in the Children (Guardianship and Custody) Act makes it absolutely clear that each parent has an equal right to apply for the custody of a child. This replaced a number of historical biases, which differentiated between children born within and outside of wedlock.
THE HISTORICAL POSITION
Before the enactment of this statute, the common law provided that the father of a child born in wedlock had a superior right to custody of that child. He could only lose that right if he was guilty of moral misconduct or was proved to be otherwise unfit. By virtue of the common law, as well, the mother of a child born out of wedlock had primary right to custody of that child, because she also had the obligation to maintain that child under section 3 of the Maintenance Act.
When the first custody statute was enacted in Jamaica in 1956 (the Guardianship and Custody of Children Law), it made no provision for the father of a child born out of wedlock to apply for the custody of his child.
Well, we have come a long way since that time. The Bastardy Law was repealed and the Status of Children Act was enacted in 1976 to ensure that "the relationship of all children to their parents and particularly an illegitimate child to its father who has accepted paternity is now the same, whether or not the parents are or have been married to each other". In other words, the relationship between a child and his mother or father is no longer to be determined by whether the mother and father were married to each other or not.
THE CURRENT LAW
Applications can be made by the father (or mother) of a child to the Supreme Court, Family Court or Resident Magistrate's Court for custody of a child pursuant to section 7 of the Children (Guardianship and Custody) Act. The application can even be made while both parents are residing together.
Each case has to be determined based on its own peculiar facts, and the overriding concern of the court in determining applications for custody is the welfare of the child. This is the "first and paramount consideration" and stands at the top of the list of all items which may be relevant to the issue.
In all cases, the court will seek to make an order which will be in the best interest of the child, and this will not depend on money or physical comfort, only. The child's welfare will be viewed widely to include the child's physical, social, moral and religious welfare. In this way, the position and conduct of the parent, as well as the child's age, religion, happiness and ties of affection to one parent or another will also be considered.
It is important to dispel the myth that there is a presumption that a young child is better suited for care and custody of his mother than his father. It is also not proper to assume that the Court is likely to find that the mother will be accepted as the primary caretaker in preference to the father.
In conclusion, therefore, a father who has accepted paternity of a child has an equal right to apply for custody of that child as the mother. He should only bear mind that the court will explore all the circumstances of the case in considering the application and will ultimately make such order as best safeguards the welfare of the child.
Sherry-Ann McGregor is partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
