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All Woman
My niece needs her son
By Margarette Macaulay
Monday, October 26, 2009
Dear Mrs Macaulay,
My niece and a Jamaica Defence Force soldier lived together here in Jamaica a couple years ago until her father filed for her to live in the United States. While they lived together the papers came and she placed her son who is seven years old on the filing process as well. Her filing came through and she migrated to the US. Her son was left with his father until she was able to start filing procedures for him. The relationship eventually ended.
She supported her child to the fullest extent and always sent money and visited. She called her son's father on numerous occasions explaining that she wants him to be able to travel to see her and that the process for filing for him is taking place and she needed certain documents. His response was that he would have to think about it. They ended up in court on January 6, 2009. My niece wasn't present and the child was ordered into the father's custody. On the next court date the parents were given joint custody. The judge said that overseas visits were out of her hands and advised them to appeal to a bigger court. My niece is now very traumatised because the US Embassy contacted her to have the child interviewed and when notified the father said he will not send him until he is old enough to make that decision for himself. Is there any way that she can beat this? How can she go about getting her son when the father will not co-operate?
Thank you for your letter. You stated that when she left, your niece left the child with his father (clearly intending this informal arrangement to be a temporary measure) and she provided maintenance for him and kept close contact with him throughout. The father, however, ignored all her requests for her son to visit her in America. It is unfortunate that she did not formalise the position with court orders before she left.
You also state that they eventually went to court, but you did not specify who was the applicant. Your niece was absent on the first hearing day (this was not good) and an order granting custody to the father was made on that day clearly by reason of her default. She, however, attended on the next date and they were granted joint custody with, I deduce, care and control to the father. So the child continued living with the father.
You added that the judge stated that on the issue of you having access to your son in the United States, this was out of her hands and that they would have to appeal to a bigger court.
I think you or your niece must have misunderstood the judge about this.
You see, it is definitely within her jurisdiction to make such an order. It would only be out of her hands (out of her jurisdiction), if on this issue of access in the USA, no application was made for it by your niece. This could, however, have been rectified by your niece filing an application for her to have access in the United States at least during his school holidays.
The "appealing to a bigger court", could only arise if there was an application for such access which was refused by the judge.
You see, if this is what happened, the judge would have been unable to deal with the issue again. She would then be functus officio and it would be that she was acting as a court of appeal in relation to a decision which she herself made and that cannot be done in law. Once her decision has been finalised (what we say in law as passed, perfected and entered), if a party is dissatisfied with the decision or order, then they can appeal to the Court of Appeal or they can apply for a variation of the order to the same court which made it depending on what kind of case it is.
Orders relating to children can be varied, as and when this is deemed necessary.
Your letter was unclear about what really happened but what I have stated above should inform you and your niece about her possible course of action with regard to the issue of access.
About the issue of the father refusing to permit the child to go for an interview at the US Embassy, this is a nutty one.
You have not made it clear, at least to me, how old the child is now. You said when your niece's papers arrived, while she and the father were living together, she placed her son, "who is seven years old" on the filing process as well. I understand you to mean that he was seven years old at the time the papers arrived for your niece. You did not say when this was, so I have absolutely no idea how many years have gone by since then.
It is relevant because it can determine how much his own opinion and wishes can influence any decision in this regard.
As both parents have joint custody, it means that they both have the legal right and authority to make decisions about the welfare and development of their son. Ideally, they should do so together. They should discuss the pros and cons of whatever the issue is, and come to a decision based on the principle that every decision they make must be in the best interests of their child. It should not be that one parent is lording it over the other by withholding a decision or action. It is what is best for their child which should be the matter of priority on every occasion.
If one or other of the parents is being unreasonably obstructionist about a particular issue, and the other cannot persuade a change of heart or mind, then the only recourse would be to apply to the court to determine the issue for them and make the necessary orders.
In other words, if your niece cannot convince the father who has joint custody of the child with her and clearly care and control (that is, that the child resides with him) to go for the interview, then she would have to go to court to get care and control of her child in the USA and for the father to be ordered to do all that which is required to enable his son to complete the process to go and live with your niece abroad.
It is most unfortunate but this is the best I can advise in these circumstances. The trouble was planted to bud and grow when she left the child informally with his father when she emigrated to the USA. I wish her the best of luck and advise her to persevere until she gets her son.
Margarette May Macaulay is an attorney-at-law and a women's and children's rights advocate. Send questions and comments via e-mail to allwoman@jamaicaobserver.com. See responses to your questions in All Woman. We regret we cannot provide personal responses.
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