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Custody Notes

1. The document discusses custody laws and cases in Jamaica. It provides information on when and where custody applications can be made, the relevant acts and procedures, and the key considerations in determining custody such as the welfare and best interests of the child. 2. The dominant factor for the court in deciding custody is the welfare of the child, though conduct of the parents may also be considered. Moral and religious welfare, ties of affection, and overall well-being of the child must be examined. 3. Joint custody may be ordered if parents can communicate and cooperate, otherwise sole custody is typically awarded to the primary caregiver. Custody is generally given to parents over strangers, and access/visitation is allowed

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65 views

Custody Notes

1. The document discusses custody laws and cases in Jamaica. It provides information on when and where custody applications can be made, the relevant acts and procedures, and the key considerations in determining custody such as the welfare and best interests of the child. 2. The dominant factor for the court in deciding custody is the welfare of the child, though conduct of the parents may also be considered. Moral and religious welfare, ties of affection, and overall well-being of the child must be examined. 3. Joint custody may be ordered if parents can communicate and cooperate, otherwise sole custody is typically awarded to the primary caregiver. Custody is generally given to parents over strangers, and access/visitation is allowed

Uploaded by

Kevin Barrett
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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CUSTODY Facts: Mother left child with father when the child was 9 months

because of depression and domestic violence towards her. There


When and where can you make this application? were questions raised as to the suitability of the father to
properly care for the child though he was not found unfit.
An application for custody may be made in the Supreme Court
or in the lower courts. It may be made in dissolution of marriage Held: - There is no presumption that one parent should be
or before any such proceedings. preferred to another parent where the child was of a particular
age or was a boy or a girl. Observations of the court to the effect
S23 of the MCA provides that the Court may make such orders
that it was likely that a young child would be expected to be with
as it thinks fir for the custody, maintenance and education of any
the mother were subject to the overriding factor that the welfare
relevant child or for the maintenance of a spouse:
of the child was the paramount consideration. It was natural for
1. during proceedings for an injunction under s10 young children to be with mothers but, where custody was in
2. During proceedings for dissolution of marriage dispute, that was a consideration but not a presumption.

An application may be made under section 7 of the Children IMPACT OF CONDUCT


(Guardianship and Custody) Act either in the Supreme Court or
Even where the conduct of one of the spouses has been entirely
in the Resident Magistrate’s Court.
or mainly responsible for the breakdown of the marriage, the
Procedure under s23 MCA court still has to look at where the welfare of the child will be
best served.
The application would be made in the petition or by notice of
application for court orders or fixed date claim form. Allen v Allen

Procedure under section 7 of the C(G&C) Act Marriage with father of child ended because of the adultery of
the mother. Child remained with mother and was happy with her
By fixed date claim form in the Supreme court and summons in and doing well in school. There was medical evidence that the
the RM Court. child’s health would suffer if she was separated from the mother.

WHO IS TO HAVE CUSTODY? Held- the welfare of the child, both moral and physical was the
paramount considerations. Custody should remain with the
C(G&C) Act 7.-(1) The Court may make such order as it may mother.
think fit regarding the custody of such child and the right of
access thereto of either parent, having regard to the welfare of Conduct may be weighed against a party, not because of
the child, and to the conduct of the parents, and to the wishes as punishment to the party but the effects it would have on the
well of the mother as of the father. child’s disposition.

Section 18 of the Act makes the welfare of the child the Dennis Forsythe v Idealin Jones
paramount consideration.
Child(Brian) was living with his mother, her fiance and his two
Clarke v Carey sisters in a modest two bedroom home and he was happy and in
good health. His father a lawyer who willfully smokes ganja in
The admitted father of two illegitimate children was granted breach of the law albeit for religious purposes and with more
custody on appeal. The Children were living with their father money and a larger house applied for custody. Custody was not
and his wife in a good house with their own room and were granted to the father as the best interest of the child was satisfied
happy and doing well in school. The mother after returning from by the child remaining with the mother. Lindley, LJ said:
the US applied for custody. She had no job and no stable place
to accommodate the children. ‘The dominant matter for the consideration of the Court
is the welfare of the child. But the welfare of a child is
Held- The future of the children if allowed to live with their
not to be measured by money only nor by physical
mother would be uncertain. The best interest of the children
comfort only. The word welfare must be taken in its
required that they remain in the custody of their father.
widest sense. The moral and religious welfare of the
Re S (A Minor) (Custody) - [1991] FCR 155 child must be considered as well as its physical
wellbeing. Nor can the ties of affection be disregarded.’
JOINT CUSTODY considered the agreement between the parties but refused to be
bound by its terms in determining the welfare of the child.
Joint custody orders are not made unless parents are able to
communicate and cooperate with each other, if not, it can be
very difficult. Generally, the court awards custody to the person
who is going to have the day to day care of the child.

Caffell v Caffell

Joint custody of the child was granted with care and control to
the mother. It was noted that this form of order should only have
been made where it was clear that the parties were likely to co-
operate. However, it was also correct in this case because it
recognised the husband’s concern for his children.

CHILD’S RIGHT TO LIVE WITH PARENTS

Where there is a claim between a parent and a stranger, the


custody should be granted to the parent unless the welfare of the
child demands otherwise.

ACCESS

Where the Court gives custody to one party it will usually allow
the other party reasonable access to the child. This is the basic
right of every parent and should not be refused, except in
unusual circumstances where for example, access will lead to
emotional and psychological disturbance. Generally, the welfare
of the child demands that access should be continued.

VARYING CUSTODY AND MAINTENANCE ORDERS

In general, there has to be a change of circumstances for the


court to vary a previous order. The court might be persuaded to
vary an existing order if the orders previously made no longer
serve the child’s best interest.

CROSS- JURISDICTIONAL CUSTODY ISSUES

When the court which is adjudicating is outside the country


where the child has been living the tribunal must firstly consider
if it has jurisdiction to hear the custody application and only if
jurisdiction is accepted can it then go on to consider the merits
of the application itself. As illustrated in the case of Panton v
Panton.

AGREEMENTS

Whilst they are not explicitly recognized by statute in Jamaica,


agreements regarding custody can be made between parties. The
court may attach weight to the agreement depending on its
reasonableness but will reserve an inherent right to overrule any
of its provisions. See Panton v Panton where the Court

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