Features — 20 January 2018

    I am writing on this topic because as women sadly, we give birth to our children and yet do not even bother to learn the legal rights and obligations touching and concerning our children. It is really incredible when one stops and thinks that there are specific laws relating to the status of ourselves as women and children, determined by the mere fact of wedlock or not. And said laws are not trivial, as they go to the core of a basic right as to custody, care and control over the very children that are the fruits of our womb …. Yet most women do not even know these laws.  If I had to venture a “guesstimate”, I would say that 90% of women do not know their rights on this topic.  I base my guess on the number of cases and clients I have had to deal with on the issue of child rights and custody.

Wedlock vs. no-wedlock
Attempts have been made to remove the social stigma associated with children born out of wedlock and one of the most monumental moves was to repeal the Bastardy Act in England in 1926 and almost all Commonwealth countries thereafter. Said Act specifically deals with children born out of wedlock, who were legally referred to as bastards, illegitimate and basterino, amongst other terms. Those have such a derogatory connotation yet the reality remains that in law there are clear differences when dealing with children born in wedlock and those born out of wedlock.

It has not even been a hundred years since the law has tried to remove the restrictions placed on children born out of wedlock. For Belize it has not even been fifty years, but from my experience I have heard fewer children being referred to as bastards or illegitimate than I heard growing up and it may be in part that such Bastardy Act no longer exists. Ask anyone over fifty years and I can assure you they may have heard of or known the provisions of such Act.

One key thing that has changed is that a child born out of wedlock is no longer punished by being denied his right to inherit under his father’s estate in cases of intestacy. However, they are still treated differently in relation to critical matters such as: 1. automatic right to the father’s name; 2. right to maintenance; 3. access to a higher court to assert family rights; and 4. right of custody of mother versus father.

Custody rights
It is rather very perplexing that there is grave disparity over the custody of a chid depending on whether he was born out of wedlock or not, which in and of itself may have its pros and cons depending on your interest in the matter. A child born in wedlock is automatically the subject of equal and shared custody of said child by both parents; however, a child born out of wedlock is solely under the custody of the mother by the mere virtue of the fact that the father never married her before, during or after the child was born. The reference “born out of wedlock” does not mean that if the parents marry after the child is born that the child will not be seen as being born in wedlock; on the contrary, even with marriage after the fact, the child is still considered to be “in wedlock”.

The child born out of wedlock is considered a child born to a single woman, even if she is co-habiting with the father of the child or the father of the child gives his name to the child or even if the mother has obtained common-law status by virtue of co-habiting with the single father for five years or more. I believe that the concept that a child born to a single woman comes from the historical rule that the “bastard” child was considered filius nullius, which means “child/son of no one”.

This therefore means that only the mother had AUTOMATIC custody of said child as of right and that still holds to date. It seems that many “single” mothers do not know this right and often fear the child’s father by virtue of believing that the father can just take the child away. This however is not so, but the father can apply for custody and to obtain such custody through the courts must meet a high standard of proof.

Father’s grounds for custody
Ironically, the father, by virtue of marrying the mother, can immediately upgrade his right to custody for his child and be on par with the mother. But where that does not happen, the father then has the option to approach the Family Court and apply for a custody order on one or several grounds. Section 85 of the Families and Children Act, CAP 173 addresses the grounds and what is considered as follows:

85.-    (1) The father of a child born to a single woman may apply to the court sitting in the district in which a child normally resides for an order granting him right of access to, or legal custody of, the child while such child is under the age of eighteen years.
(2) Before considering such application, the court shall ….
(3) An application made under this section for legal custody shall allege one or more of the following grounds:
(a) that the mother of the child has deserted or abandoned the child in such a manner as to endanger the health or well-being of the child;
(b) that the mother is by reason of intemperate or immoral habits (such as prostitution or drunkenness), or for any other reason, unfit to have custody of the child;
(c) that the mother does not exercise proper care and control of the child;
(d) that the order, if made, will be in the best interests of the child, and a social services practitioner employed by the court has so confirmed;
(e) any other matter relevant to the application.
(4) The mother of the child may be required by the court to appear and make representations to the court touching on the application then being considered.
(5) Before granting the application, the court shall be satisfied that the order, if made, will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child, having regard to its age and understanding.

I opine that these are not easy grounds to prove, except in exceptional cases where the mothers indeed are negligent and have abandoned their child, which has become more frequent than before in my view, as women of very tender age keep having children. And gladly there are more men who have taken greater interest in genuinely raising their children and providing for them.  However, we seldom hear about the good cases as it seems the bad cases of parenting are becoming far more prevalent or known of.

However, looking at the grounds, it is my opinion that it is very difficult to prove that a mother is a common prostitute or drunkard or abandoned her child. I recall years back a father seeking to prove the mother’s immorality by virtue of her working as a waitress at a bar, and the court found against him. In another case a father claimed the mother abandoned the child because she worked long hours, yet he refused to pay maintenance even when the court ordered it, thus the mother had to work even more to be sole provider; however, the court found against him.

Often women believe their weaker financial standing in comparison to the father may be basis to lose custody, but that is not so. As you note, none of the grounds says that the father is entitled to the child because he is a better provider. Rather, because he can provide, he will be expected to provide his share of maintenance for the child as both parents have a duty to maintain their children. No matter which parent has custody the child’s right to access both parents must be respected and usually the parent with custody is also the parent who has care and control over said child.

What is custody?
“Custody” means the right of a parent to decide where the child lives, his education, and religious upbringing, and all important decisions over said child. The mother having custody does not mean that the father does not have right to access and visit the child. On the contrary, once the father accepts paternity, he has the right to spend time with and have the child during specific stipulated times and for specific holidays. I will need to write on this another time as it is one of the most pressing issues.

It is important to note how the law treats differently the status of the child, the mother and the father, due to the simple, yet legal act of marriage. Many underestimate the duties, obligations and benefits or maybe disadvantages that come with marriage, but for legal purposes alone it is important to know what these are. But for now as the law stands, the child born to a single woman is under the sole custody of the mother unless the father could prove one of the above grounds before a competent court of law.

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Deshawn Swasey

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