Stephenson v Stephenson

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 09 December 1980
• Court: Grand Court (Cayman Islands)
• Date: 09 December 1980

Grand Court

(Summerfield, C.J.)

H.A. STEPHENSON

and

D.I. STEPHENSON and JOHNSON

O.L. Panton for the petitioner;

D.E. Ritch for the respondents.

Cases cited:

(1) In re C. (A.) (an infant), C. v. C., [1970] 1 W.L.R. 288; [1970] 1 All E.R. 309, applied.

(2) In re L. (infants), [1962] 1 W.L.R. 886; [1962] 3 All E.R. 1, distinguished.

Family Law-children-custody-welfare of child of paramount importance-in case of daughter, special bond with mother and ability to provide necessary home training and example crucial factors-age of child and stability of environment important

The petitioner sought the custody and control of his daughter, following his divorce from the respondent.

While their marriage subsisted, the father regularly looked after the child while the mother went out to work to supplement the family”s income, at first on night shifts, and to night school to improve her qualifications, although she did bear her share of the responsibilities. When she left the matrimonial home to go to live with her mother, she took the child with her, but the petitioner forcibly removed the child. Following the divorce proceedings, an interim order was granted placing the child (who at this time was three years old) in the care of her father until the issue of custody was determined.

The petitioner submitted that (a) since the breakdown of the marriage had been caused by the respondent”s adultery, the child should be laced in his care; but (b) should custody be granted to the respondent, e had demonstrated himself to be fit to play a prominent role in the child”s upbringing and should be granted frequent access; and (c) as the first respondent was about to marry an expatriate (the second respondent) the court should order that either his permission or that of the court should be obtained before the child be removed from the jurisdiction.

The respondent submitted in reply that (a) the marriage had already broken down as a result of the tension created by her assertion of indeendence and that her adultery had merely been a consequence of the reakdown, not its cause, nor had it led her to neglect her child.

Further, although she may have been the ‘guilty party’ in respect of the final dissolution of the marriage, that did not affect her suitability to have custody and control of her daughter; and (b) the welfare of the child was the prime concern of the court and since the respondents were about to marry and the co-respondent had promised to treat the child as his own, she would be brought up in a more stable environment. In view of her age, her interests would be better served by maintaining the close bond with her mother who could also provide her with the necessary home training and example.

Held, dismissing the application:

The respondent”s adultery, although the final ground for the divorce, was, on the evidence, more a consequence of the breakdown of the marriage than its cause and it did not affect her suitability to have custody of the child. On balance, the circumstances of the parents were not greatly divergent but the interests of the child were of paramount importance. At the present time, in view of the...