QUICK FACTS!
CUSTODY
What is Custody?
The concept of custody refers to the rights and duties of the parent or guardian in relation to a child. In Hewer v. Bryant [1970] 1 QB 357, 373, Sachs L.J. explained that in its wide meaning, custody was almost the equivalent of ‘guardianship’, which embraced a ‘bundle of powers’ such as the power to control the child’s education, his religious upbringing and the management of his property, until the child attained his majority [eighteen years of age] or, in the case of a female child, until marriage. Custody includes, but is not limited to, the actual possession of the child’s person or the power of the parent or guardian to exercise physical care and control over the child.
What are the types of Custody?
- Joint Custody
Custody is vested in both parents, thus giving them the right to decide on important matters that may affect a child’s upbringing.
According to Section 8 (2) of the Custody, Contact, Guardianship and Maintenance Act No. 5 of 2011, the mother and father of a child are equally entitled to custody of the said child. Thus, in Guyana, both parents are equally entitled to custody of the child unless and until an order of court determines differently.
Pursuant to Section 8(1) of the Custody, Contact, Guardianship and Maintenance Act No. 5 of 2011 (“CCGM”), a child has the right to know both of his parents. Further, Section 8 (2) CCGM Act provides that the mother and the father of a child are equally entitled to the custody of that child. Section 12 (1) of the Infancy Act Cap 46:01 reinforces this position where it states that both the father and the mother of an infant shall be the guardians and shall be entitled to the custody of the infant. However, Section 12 (2) of the Infancy Act notes that the court may deprive a parent of guardianship or custody of an infant. This shows that although parents possess this right, they may be deprived of it by an order of the court in order to secure the best interest of the child.
In the case Jussa v Jussa [1972] 2 All ER 600, the Court granted sole custody to the mother with reasonable access to the father. However, the father appealed against the custody order, although he conceded that the mother should have care and control. The Court of Appeal overturned the previous decision and granted a joint custody order, with care and control to the mother. Wrangham J, in his judgement stated, that in cases where the father and the mother are both well qualified to give affection and wise guidance to the children for whom they are responsible and where they appear to be of such calibre that they are likely to cooperate sensibly over the child for whom both of them feel such affection, then there can be no real objection to an order for joint custody.
It should be noted that there is no principle that a child must be with one parent versus another. Parents are to be treated equally, and all the circumstances must be considered, bearing in mind that the child’s best interests must be paramount.
