The Struggle for Custodial Care

Where parents are unable to manage their relationship, it frequently leads to a battle for custodial care. When this battle is ensued, one often hears remarks that the judicial system is prone to giving custody to mothers.  However, in actuality, the court when faced with a custody matter, seeks to look after the best interest of the minor. In so doing, the court ensures that minors are placed in the most suitable care given all of the circumstances.  Having regard to the foregoing, we will examine what is custody, where an application can be made, who can make an application, types of custody orders and the general factors that the court considers when determining this type of application.

What is Custody?

This is defined in the Family Law (Guardianship of Minors, Domicile and maintenance) Act Chapter 46:08 (Family Law Act), as the right to possession and care of a minor. In other words, a person to whom care and control of a minor is entrusted.

Where can you make an application for Custody?

Custody applications can be made at the District/Magistrates’ Courts; and the High Courts of Trinidad and Tobago.

What information and documents are required?

When making custody applications the following must be provided:

1. Full Name | Address | and Contact No. for you and the other party
2. Identification Card or Drivers License or Birth Certificate for Self
3. Email address (where available)
4. Birth Certificate of Minor (If you do not have a Birth Certificate for the minor and your name is on the document you can request your own copy at the Ministry of Legal Affairs)

Applications at the District and/or Magistrate Court

If you are applying for custody at the District / Magistrates’ Court you can commence proceedings on your own or retain the services of a private attorney.

Commencing Proceedings on your own

You may visit and/or email the court in your district to apply for custody. Ensure that you have all the supporting documents mentioned previously before you apply. The court’s email addresses are as follows:

If you are unable to afford an attorney, you can contact the Legal Aid and Advisory Authority at 638-5222. Where you are seeking Legal Aid assistance the case information must be requested from the court and submitted to Legal Aid. This information includes:

Case No(s):
Names of Parties:
Type of Matter:
Date of Hearing:
Court:

Once all the information is submitted, the requisite legal aid application is formalized and submitted to the court for approval for legal aid.

Applications at the High Court

This type of application is made at the Family and Children Division of the High Court. In order to commence proceedings at this court parties should retain an attorney. If you are unable to afford an attorney, you may contact the Legal Aid and Advisory Authority to be assessed regarding eligibility for legal aid.

Who can make an application for custody?   

A parent, guardian or stranger (not a relative to the minor) can make an application for custody.

For example: If you are a stranger who has been primarily caring for or maintaining a minor, you can apply to the court to have custodial rights for the minor in your care. Even where a minor is not in your care, if you believe that the minor is not being adequately cared for, you can make an application for custody.

What Custody orders can the court make?

There are generally two (2) types of Custody orders, they are:

• Sole Custody – where a party obtains both legal and physical custody of the minor. Where this arises, the successful party is responsible for all decisions about the minor’s welfare. This type of order can be obtained at both the District and High Courts. However, where the Application is made under the Family Law Act, such custody is referred to as Legal Custody.

• Joint Custody – both parties have legal custody and are involved in the decisions regarding the minor’s welfare. However, one party will have physical custody and/or care and control. This type of order can be obtained at the High Court only in Matrimonial Proceedings since Section 18 of the Family Law Act clearly states that an order shall not be made, under the relevant sections of the Act, giving the legal custody of a minor to more than one person. However, the other party may retain his/her parental rights.

Factors the Court considers when awarding custody

In custodial proceedings the welfare of the minor is paramount. The court in arriving at a decision in this type of matter will be guided by the overarching principle as well as the following factors. This list is not exhaustive.

1. The existing status quo
2. The wishes of the minor
3. Gender of the minor
4. Present Living Accommodations of the parties
5. Financial Positions of the parties
6. Level of Familial Support available to the parties
7. Minor’s Educational Performance