Custody applications in Jamaica – Part One

'Custody' gives a parent the right to make all important decisions about the conduct of a child's life.

To be practical, the application reflects a formal request to the court to be granted 'care and control' of the child as this will mean that the parent would primarily care for the child while the other parent would be granted 'access', which means that the other parent will see the child on agreed periods such as weekends or holidays.

The relevant statue, the Children (Guardianship and Custody) Act states that: " The court may, upon the application of the father or mother of a child, make such order as it may think fit regarding the custody of such child and the right of access thereto of either parent, having regard to the welfare of the child, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent."

It is important to note that neither parent's right supersedes the other. Irrespective of who makes the application, the court may grant: sole legal custody and care and control to one parent with access to the other; or sole legal custody and access to one with care and control to the other; or joint custody to both, with care and control to one and with access to the other; or the parties may agree on any of these and the court will make the order in the terms agreed.

A custody application can be brought in one of two ways, by way of summons at the parish or family court or by way of a fixed date claim form at the Supreme Court. Both the summons and the fixed-date claim form are to be supported by an affidavit in support. The said affidavit must detail why it is and will be in the best interest of the child for him or her to have custody, care and control, and for the other parent to have periodic access. The affidavit should also include facts of the home environment and plans for the daily care of the child, as well as plans for the child's education and religious upbringing.

It is usually the belief of the general public that the court tends to favour the mother in such applications. However, I will say that these matters are quite subjective and are determined on a case-by-case basis. The court will take into account several factors and, sometimes, depending on the age, as well as the sex of the child, it may be best for the mother, and not the father, to have custody. The factors considered are quite extensive and in order for you to have a full understanding of them, I will devout next week's edition to the said factors.

Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. Marston may be contacted via email Odanemarston@gmail.com or telephone 876-999-5391. This article is for general information purposes only and does not constitute legal advice.