Neshi­ra Lath­am

Cus­tody is a mat­ter that aris­es main­ly af­ter a di­vorce or sep­a­ra­tion since most times there are chil­dren in­volved. For the court, the wel­fare of the child is the most im­por­tant con­sid­er­a­tion as it in­volves plac­ing the child un­der the care and con­trol of an in­di­vid­ual. Cus­tody is not lim­it­ed to chil­dren with­in a mar­riage but al­so to par­ents in com­mon-law re­la­tion­ships and ex­tends to par­ents who are not in a re­la­tion­ship.

What is­cus­tody

Cus­tody is de­fined in the Fam­i­ly Law Act, Chap. 46:08 (the Act) as the right to pos­ses­sion and care of a mi­nor. Le­gal cus­tody means, in re­la­tion to a mi­nor, so much of the parental rights and du­ties as re­late to the per­son of the mi­nor. This in­cludes the place and man­ner in which the child's time is spent.

Who can ap­ply for cus­tody

Any­one can ap­ply for cus­tody of a child once the court is sat­is­fied of the rea­son and is of the opin­ion that a per­son has suf­fi­cient in­ter­est in the wel­fare of the child. Apart from par­ents, oth­er per­sons re­ferred to as 'strangers' in the Act may al­so ap­ply. Such per­sons may in­clude aunts, un­cles, grand­par­ents and close fam­i­ly mem­bers. The court will grant what is known as a fit per­sons or­der to any­one who is able to give the child the nec­es­sary pro­tec­tive guardian­ship and will be giv­en care and con­trol of the mi­nor.

How and where to ap­ply

The Fam­i­ly Court sys­tem in Trinidad and To­ba­go com­pris­es both the Mag­is­trates' Court and the High Court di­vi­sions. An ap­pli­ca­tion for cus­tody can be made at both di­vi­sions. All di­vorces are dealt with in the High Court. Where cus­tody is an is­sue it is sim­ply eas­i­er to have it dealt with as part of the di­vorce pro­ceed­ings as well or as a re­lat­ed mat­ter. How­ev­er,where this is not done a par­ent can ap­ply through the Mag­is­trate's Court.

Per­sons liv­ing in the dis­trict of St George West (Ch­aguara­mas to Mt Lam­bert) can go to the Fam­i­ly Court in Port-of-Spain. All oth­er per­sons must go to the Mag­is­trate's Court in their area. The process is done by mak­ing the ap­pli­ca­tion for cus­tody, which is guid­ed by an in­take of­fi­cer in the Fam­i­ly Court or Jus­tice of the Peace in oth­er dis­tricts.

Each ap­pli­ca­tion per child costs $3. The rea­son why cus­tody should be grant­ed is im­por­tant, as well doc­u­ments such as iden­ti­fi­ca­tion or pass­port, the child's birth cer­tifi­cate, and the full ad­dress of the par­ent. A date is fixed for court to ap­pear be­fore a mag­is­trate ap­prox­i­mate­ly 4 to 6 weeks af­ter fil­ing of the ap­pli­ca­tion.

A no­tice or sum­mons is sent to the re­spon­dent mak­ing him/her aware of the pro­ceed­ings and the date to at­tend court. The de­ci­sion whether to grant cus­tody is en­tire­ly up to the Mag­is­trate. Fol­low­ing this the court may make a full or­der grant­i­ng cus­tody to the per­son who is deemed fit.

�2 This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er. Co-or­di­na­tor: Roshan Ram­char­i­tar