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Laws of Eve | Is there a bias against working mothers in custody battles?

Published:Monday | May 30, 2016 | 5:00 AM

Article 7 of the United Nations Convention on the Rights of the Child, 1989, to which Jamaica is a signatory, states: "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents."

That right to know and be cared for by both parents would seem to reinforce the assurance in section 18 of the Children (Guardianship and Custody) Act that the rights of mother or father do not supersede the other.

Despite those safeguards, I have met countless men in Jamaica who complain that there will be no justice for them in court custody proceedings. They fear that although Section 18 of the act states that the welfare of the child is the paramount consideration, the court tends to award custody of children to their mothers and severely limit, or restrict, their access to them.

 

ENCOURAGEMENT

 

Perhaps Chris Brown's recent victory in court against the mother of his child will provide some encouragement. Although Brown is perhaps best remembered for the brutal assault of his then girlfriend, Rihanna, last year, he won joint custody of his daughter, Royalty.

He was back in court this year because Royalty's mother attempted to prevent him from having access to her unless the visits were monitored and supervised. The application was refused and his right to 12 days' access to his daughter each month was maintained.

While each custody case is to be determined on its own peculiar facts, there is literature and decided cases that suggest that the belief that custody awards always favour women is waning. The more recent trend could well be a wake-up call for working mothers.

Many households have stay-at-home fathers and working mothers - or at least women who work longer hours and earn more money than their male partners. The result is that the fathers spend more time with the children than the mothers, and, despite the legitimate reasons for the mothers' absence, many working mothers now complain that the courts have become biased in favour of the fathers.

Here are extracts from some articles I read online* that provide examples of cases in which mothers have lost custody battles:

• Karen Martin was a director at an advertising agency in London and the family's breadwinner. Her husband stayed home to raise their two children. When Karen found out that he cheated with someone he met at a playgroup, she threw him out. At the end of the court hearing, not only did Karen's husband get custody of the two children, she was ordered to pay maintenance to him.

• Jane Briggs also had a successful career and was the mother of a five-year-old son when she separated from her husband. On the advice of her solicitor, she gave up her career so that she could be available to care for her son. She lost the custody battle, but could see her son on the weekends. However, while her former husband could spend lavishly on their son, she could not. When the son's demand for a computer game was not met by Jane, he called his father to pick him up and never returned to visit his mother. Jane was unable to work for five years due to the stress of losing her son.

• Jo Joyce, a divorce lawyer and mother of two boys, was married to a businessman. They earned well and lived comfortably. When the marriage broke down, a court ordered that the children live with their father. Although Jo eventually won the bitter custody battle, she felt that "the courts penalise women during custody disputes for daring to have a career as well as children".

The following extract from an article on workingmother.com provides food for thought and emphasises the need for a balanced approach.

"Debra Lehrmann, a Texas family law judge says it's no longer about trying to prove you're the better parent and the other is the worse parent. "Forget the win/lose mentality," she says. "Today, in most custody cases, both parents are adequate. Determining which one is better isn't useful." Instead, judges today aim to determine the so-called best interests of the child. Some calculate work hours and involvement in the child's school, among other factors. In general, judges believe it's in the child's best interests to maintain the status quo, and this is why working moms who spend long hours in the office can suffer in custody disputes.

If dad is the more flexible and accessible parent and the arrangement seems to be working, a judge or custody evaluator will not rock the boat."

* workingmother.com; daily mail.co.uk

• Sherry-Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.