Custody

• Author: Fara Brown
• Profession: Attorney-at-law practising in Jamaica for over 30 years
• Pages: 256-312

7. Custody

1. INTRODUCTION

2. CUSTODY LEGISLATION IN JAMAICA

3. DEFINITIONS

•The Welfare Principle

•Custody

•Access

4. PRACTICE AND PROCEDURE FOR CUSTODY APPLICATIONS

5. GUARDIANSHIP

•Introduction

•Summary and Overview

•Statutory Provisions

•Practice and Procedure for Guardianship

6. ADOPTION

•Introduction

•The Act

•The Legal Effect of Adoption

7. THE WAY FORWARD

INTRODUCTION

Upon the death of Desmond, his wife Mary found herself in

poverty, with more children than she could properly take care

of. The solution was that two of the children were ‘adopted

out’ into what turned out to be two different families. The

boy found himself in a family that had some money and spoilt

him. He was indulged and petted, with little emphasis placed

on the importance of getting a sound education. At an early

age, he joined a small band of musicians who played at local

dances. His youth was spent in jollication and libation. The

girl, on the other hand, was fortunate enough to nd herself in

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a reasonably ‘well-to-do’ family that nurtured her intelligence

with proper schooling and ensured that she took all the public

examinations to further her ability. She did spend an occasional

weekend with her birth mother and the remaining siblings, but

she still slightly resented that her mother had given her away,

and her siblings were openly jealous and excluded her. At the

appropriate time, she was ‘boarded out’ 1 in Kingston in order

to attend a prestigious high school. After leaving school, she

went to a teachers college so as to be able to enter the main

profession open to women at that time.

Unfortunately, in many situations as the one described, there were

different and more serious results. Many a teenage pregnancy has

had its origin in inadequate family supervision due to the absence

of a parent, and many instances of juvenile delinquency can be

attributed to distant or non-existent parenting. At the same time,

many children have found themselves to be the beneciary of well-

meaning caregivers, some related, who have taken them in, brought

them up, and launched them into a successful life.

In Jamaica, as in most Caribbean countries with a population

which is predominantly of African descent, the issue of child care is

a battleground between the received norms of the former colonial

masters enshrined in the law and the social and cultural values of

child-rearing, originating from Africa.2

The importance of family as an extended, rather than a nuclear

concept, is the foundation of the Jamaican approach to raising

children.3 When the issue of child care is compounded by that

constant feature of island living – migration4 – a potent mix of

1. Persons would (and still do) provide lodgings for children from the country who

were/are attending school in certain main towns.

2. For some reason, it would appear that the child custody norms of the other

population strands have not played a signicant role in shaping the law in

Jamaica.

3. Caribbean Families-Extended Families, http://family.jrank.org/pages/204/

Caribbean-Families-Extended-Family.html.

4. This took the form of ‘intra-Caribbean’, hemispheric, and later intercontinental

migration; see Verene Shepherd, ‘On the Move: Caribbean Women and

Emigration,’ in Women in Caribbean History: The British-colonised Territories

(Kingston: Ian Randle Publishers, 1999).

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258

motivation, ambition, and largely good intentions5 is constrained by

inexible legal denitions and categories that most people do not

identify with at all.

What may appear to be a fairly casual approach to ‘who goin’

look after di chile’ [Who is going to look after the child?] masks

what is basically an assumption that one’s family is available as a

child care resource when the vicissitudes of life impede direct

parental involvement.6 Interestingly, migration, whether from

country to town, or from one island to another, or from Jamaica

to America, Canada, or the UK – is an enduring occurrence, but

not the only factor that inuences child care practices. In Jamaica,

as with anywhere else, parents may get sick, die, or go to jail, but

there are also some situations and features which prevail in the

Commonwealth Caribbean that are less typical.7 Women who

perform domestic work on a ‘live-in’ basis are forced to leave their

own children in the care of others while they keep house and look

after their employer’s children. In such circumstances, the prolonged

absences of the biological parent cause children to look upon their

day-to-day caregiver as parent, rather than the person who comes

periodically bearing apologetic gifts.8 In situations where the parent

is in another country the children wait patiently for the parent to send

for them, and even when this dream materializes, it often becomes

difcult for the parent and child to resume their respective roles in

relation to each other because they simply do not know each other.

In the circumstances described, the concepts of custody,

guardianship, and adoption are terms that bend and ex to suit

the circumstances. Adoptions in Jamaica are often informal and do

5. ‘Better wages, educational opportunities, and for self-improvement’.

6. Leaving children with grandparents remains an enduring feature of Jamaican

family life.

7. Teenage pregnancy, see Pauline A. Russell-Brown, Beverly Norville and Cheryl

Grifths, ‘Child Shifting, a Survival Strategy for Teenage Mothers,’ in Caribbean

Families: Diversity Among Ethnic Groups, eds. Jaipaul L. Roopnarine and Janet

Brown, 223–242 (Greenwich, CT: Ablex Publishing Corporation,1997).

8. This is seen up to the present in the phenomenon of ‘barrel children’. See notes

under ‘Children and the State’ chapter.