Posted Friday, November 02, 2018
Joint care and custody can be given, even if the child resides abroad

A father can have joint custody of his son even if the mother and son live outside Malta. This was decided on 23 October 2018 in AB v Dr Benjamin Valenzia on behalf of CD, who is absent from Malta.

AB, the plaintiff filed a lawsuit against the mother of his son. The defendant is a French national and therefore the son is both French and Maltese. After the birth of their son, they all lived together for a number of months, but in January 2017, she left Malta to Morocco with their son. They are living in Morocco until this day.

The father’s access to his son was limited even when he travelled to Morocco. In August 2017 all communications were cut off. The defendant did not co-operate with Court proceedings in Malta and ignored all communications from Court.

In December 2017 the plaintiff travelled to Morocco to see his son but he was attacked by the defendant and he suffered facial injuries. He tried again in January 2018 by visiting them again and only saw his son for 15 minutes.  This is affecting his son emotionally and is also affecting his psychological development.

This was certified by French doctors.  The plaintiff also explained that he pays €425 in maintenance. The plaintiff asked the Court to award joint custody and to order full access to his son.

The curators appointed by the Court to represent the defendant held that they attempted contact her but did not succeed. Madame Justice Abigail Lofaro, who delivered the judgement, analysed the evidence produced, which included the plaintiff’s affidavit.

He explained that once he learnt the defendant was pregnant, he took the matter seriously. He financed a home for them. He noticed that the defendant did want to stay in Malta until in January 2017 she fled from Malta with their son. He traced them to Bordeaux in France and then in Morocco.

They were traced thanks to the Maltese Embassy in Morocco. In Morocco he has no information about his son’s education, but just receives the bills. From the few times he had contact with his son, it is clear that there is a loving connection between the two.

The plaintiff’s father, mother,  sister and friend all testified and corroborated the difficult time the plaintiff passed through due to the separation from his son and how the defendant made life difficult for him to have a meaningful relationship with his son.

The Court then took to task the legal implications and quoted several judgements. In Jennifer Portelli pro et noe -v- John Portelli, decided on 25 June 2003, the court held that the law throughout the ages and local and foreign caselaw show that the children’s custody and education are shared between the spouses and when they separate, the situation remains the same. In John Cutajar -v- Amelia Cutajar, decided by the First Hall of the Civil Court on 28 January 1956 stated that the apart from any moral consideration, the care and custody of the children should be taken after analysing all the circumstances of the case, but keeping the interest of the children paramount. In fact, Article 7(1) of the Civil Code, states:

“(1) Parents are bound to look after, maintain, instruct and educate their children in the manner laid down in article 3B of this Code.”

Article 3B stipulates:

“(1) Marriage imposes on both spouses the obligation to look after, maintain, instruct and educate the children of the marriage taking into account the abilities, natural inclinations and aspirations of the children.”

Therefore, the law imposes the same obligations on the two parents and they both have to contribute to their upbringing. The law does not dictate a formula on how to calculate maintenance,  but imposes a number of principles as listed in Article 20 of the Civil Code, such as maintenance must be established according to the needs of the children, but also according to the means of who is paying.

The Court should impose a means test which includes all types of income.

In this particular case the defendant took the child illegally outside Malta, which left the plaintiff without his full rights, apart from being allowed his material support but no emotional support.

The Court pointed out that the plaintiff was not seeking exclusive custody, but joint custody and it did not see any legal reasons why the court should not uphold his request. He also requested that he has free access to his son, even though the son is resident outside Malta.

The Court also did not find any legal impediment from him having unfettered access, especially when the defendant took the law in her own hands and fled from Malta with their son.

The Court then moved on to decide to give the plaintiff joint care and custody of the child and also free access, which was extended also to the plaintiff’s family members.
 
Avv.  Malcolm Mifsud
Partner
Mifsud and Mifsud Advocates
 
This article may also be accessed on Malta Today.  
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