The hearts of young children are delicate organs. A cruel beginning in the world can twist them into curious shapes. The heart of a child can shrink so that forever afterward it is hard and pitted as the seed of a peach. – Sir Hugh Wooding
This is why parents are under an obligation to create a nurturing environment for their children. However there is no doubt that many men feel that the law does not favour them when it comes to the custody of their children.
Meaning of Custody
When considering the custody of a child the terms custody, care and control are used. In many consent orders custody is shared and care and control is given to one parent with the other being given liberal access to the child.
Custody refers to the rights and duties and powers of the parent or guardian in relation to the child, which terminate at the age of majority. Care and control or possession of the child is a subset of those rights, which terminate at an earlier age, at the age of discretion.
Contentious Issues Over Children
It is expected that the parents will act in a mature way always keeping in mind that the welfare of the child is of paramount importance.
Nevertheless where parents find themselves before the Courts it is often the case that parents are filled with mixed emotions about each other. Sometimes having been hurt in the relationship one or both might feel bitter toward the other.
Indeed they might argue that it could never be in the best interest of the child for the other parent to have care and control. This is where the Court is called upon to make a decision.
There is a perception that the Courts will always find in favour of the mother unless she has some serious problem which makes her incapable of caring for the child.
Let us see what the law says.
The Historical Perspective
The common law, which Barbados inherited from the British, established that the mother had the right to the custody, care and control of a child born outside of marriage. On the other hand with respect to the child born within marriage, the father’s right to custody, care and control was superior to that of the mother.
Arguably however with the introduction of the Status of Children Reform Act 1979 (Cap. 220 of the Laws of Barbados) and other such legislation across the Caribbean where all children are to be treated equally, that distinction in the allocation of parental responsibility has changed. Section 3 of the Act states:
For the purposes of the laws of Barbados the distinction at common law between the status of children born within or outside of marriage is abolished, and all children shall, after the commencement of this Act, be of equal status; and a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside of marriage.
In Barbados the rights of the putative father with respect to a child born out of marriage is linked to cohabitation with the mother in a union other than marriage which is recognised under the Family Law Act. If no such union exists then the father has no automatic parental rights unless there is declaration of paternity in his favour. Once that paternity has been established however it would seem then that the law will view both parents as equals.
No Presumption that a Child should be with either Parent
In the case of Edwards v. Edwards (Barbados: Unreported No. 187 of 2004) where one of the children in question was 10 months old Justice LeRoy Inniss stated:
There is no presumption that it is in the interest of children to be with either parent. In considering all of the evidence however, it cannot be ignored that nature has provided a mother with a special source of easily available nutritious food for her young. No doubt in the very act of feeding, besides receiving physical nourishment, a close bond is created between mother and infant child. It is only for some compelling reason that a court should seek to overrule nature.
He concluded that he had found no reason in this case.
The Court therefore found that the mother could take the children from Barbados even though she had absconded with them previously. The fact that the father feared that he might never see them again was not persuasive enough.
The Court felt that the Canadian courts would exercise their jurisdiction to assist the father if the mother prevented him from seeing the children.
Father Awarded Custody
In the case of Gill v. Gill (Barbados: Unreported No. 302 of 1988) the children were in their early teens and had been living with their mother in British Colombia. There had been an interim order there giving the mother care and control of the children. Chief Justice Sir Denys Williams in this case acknowledged that the father had taken the children from British Colombia by means of a trick.
While he did not condone the flouting of the order of that Court he took the view that in examining the circumstances that the children were better off with their father in Barbados. They were doing well in school and close to taking their Advanced Level examinations and had been in Barbados for over two and a half years.
The Chief Justice spoke to the children and took their views into account. The CJ acknowledged that they had grown accustomed to life in Barbados with their father and therefore it would be upsetting and unsettling for them to be taken away from the environment to which they had grown accustomed. The Court therefore found that the father should have care and control.
So it is clear that the law recognises that each parent is equally entitled to custody of the child. One should note however that the Courts are not immune from the influence of cultural norms and it would therefore not be surprising if mothers, all things being equal might have a slight advantage in the case of very young children.