Maskort v Maskort

JurisdictionBahamas
CourtSupreme Court
JudgeSmith, J.
Judgment Date30 Jan 1986
Docket NumberEquity Side No. 536 of 1984

Supreme Court

Smith, J.

Equity Side No. 536 of 1984

Maskort
and
Maskort
Appearances:

Mr. Michael Scott for the plaintiff

Mr. Desmond Edwards for the defendant

Family Law - Children — Custody — Parents divorced — Child of mixed race — Father living in Germany and mother in Bahamas — Decision by court that mother should have care and control of child with full and reasonable access by father

Smith, J.
1

The plaintiff Natalie Maskort applied by Originating Summons to this Court under the Guardianship and Custody of Infants Act for:

  • (I) custody of her infant son, Brenden G. Maskort;

  • (II) an order that the defendant (her former husband) H. Maskort be prevented from taking any action to impede or otherwise interfere with such custody; or

  • (III) that such further or other order may be made in the premises as to this Honourable Court shall seem meet.

2

The defendant himself filed a cross-summons to have grant to him custody of the said infant and to make an order that the plaintiff return the child to this jurisdiction.

3

The plaintiff, either before or after filing her Originating Summons, took the child out of this jurisdiction and to the State of Maryland in the United States of America where her parents resided. The infant was however returned Bahamas during the course of the trial.

4

Various affidavits alleging, among other things, ill treatment of the child, have been filed, both on behalf of the plaintiff and of the defendant. Each of the parties accuses the other of not being able adequately to take care of their now three year old child.

5

While the matter was being heard, however, there was an attempt by the parties to come to an agreement on the custody of the infant. This was due, no doubt, to some sound advice of their counsel. They did not reach complete agreement, though, and the Court was left to decide, on the evidence, which party should have custody of the infant either jointly with the other or solely.

6

The plaintiff maintained that the Court should grant sole custody to her while the defendant now strives to have the Court make an order for joint custody. It is common ground however, that in coming to its decision, the Court must have uppermost in its mind that the welfare of the child is to be of paramount importance and whether sole custody is given to plaintiff mother or joint custody to both plaintiff and defendant this matter of the child's welfare will have to be dominant concern.

7

The plaintiff and the defendant were married here in The Bahamas on the 17th January, 1981. The infant was born here on the 8th April, 1982. The parties separated on the May, 1983, and have since divorced.

8

Apart from what appears in the Affidavits made by and for the parties, the Court must look at all the circumstances and “having regard to the welfare of the child, and to the conduct of the parents, and the wishes as well as of the mother as of the father”, make its decision based on all those matters.

9

The acrid and scurrilous charges which the defendant has made against the plaintiff in his affidavits notwithstanding, the position of the defendant is that he is not entirely against the custody of the child being granted to the plaintiff if he is also given joint custody. The evidence in the affidavits of and for parties is such, though, that a Court, accepting that evidence wholly, might quite easily come to the conclusion that neither of these parties ought to be given custody of the infant.

10

There would seem however to be more and ethnically more compatible familial support for the infant if he is in the custody and care of his mother than would be the case if sole custody were given to the father. There is no evidence of any relationship between the infant and the relatives of defendant although the defendant did state that the infant was taken to visit the paternal grandparents in the Federal Republic of Germany in November 1983. On the other hand the child has had considerable interaction with his maternal grandparents who are among the more solid of the citizenry of the Commonwealth.

11

The father seems to be a wanderer or, as the plaintiff deponed, “a peripatetic person and no-longer permanently resident in The Bahamas”.

12

There is to my mind, another very important factor to be taken into consideration. The child is a product of a racially mixed couple, the father being a citizen of the Federal Republic of Germany and white, and the mother a citizen Bahamas and black. The child of such a couple is usually, by standards set in the European world in which the father has his roots and where he shows, from the evidence, an intention to reside again, judged to be black. Certain disadvantages could arise from that classification of the infant which do not manifest themselves as cruelly in this society as they apparently do in Europe.

13

I think I can safely say that a child of Brenden's background more likely to grow up in a healthier atmosphere in The Bahamas than he would in a European country which has a population with a large and relatively dominant white majority and a depressed black minority. He has been a Bahamian family all his life short though that is up to now; and I am therefore minded to give custody to the mother, with her background being an advantage to the child and in her favour.

14

That would suggest that the father would not therefore not be given the exclusive or sole custody he first contended for in this Court.

15

The defendant, though, has asked this Court to give him joint custody with the plaintiff if it is not minded to grant exclusive custody to him. I must see therefore whether such a course would be in the best interest of the infant and would adequately have regard to the infant's welfare.

16

In seeking to persuade...

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