Dear Mrs Macaulay,
I am of English nationality and have a 20-month-old son with my Jamaican girlfriend. Our son was born in the USA and now has both American and English passports. He does not have a Jamaican passport, but multiple landing rights. He is being brought up in Jamaica by a close family relative while his mother completes her degree in the USA.
For the final week of her internship she wants a trusted friend to take him up to the USA so that she can show him around to the colleagues she is about to leave. He does not know this person well, and I am worried about her taking him out of his home environment. It is not clear who is going to be looking after him during the daytime while he's there. On top of that, she will be packing to leave to go back to university for the final part of her degree.
I have already paid for her to come back to Jamaica to spend 10 quality days with him as soon as she leaves her internship (before she goes back to university), and feel that in terms of the child's development, that should be enough.
Maybe I am being too harsh, but can you please advise me if I have any legal rights in this situation under Jamaican, English or American law? Could I, for example, lodge an injunction to stop her doing this?
It is quite clear that your son's mother's plans will be disruptive of his normal life and routine. One has to ask the question: Is this trip for the child's welfare? Will he be able to understand what is happening or why he is being taken away from his closest caregiver?
Your description of the plan paints a picture of the young child being repeatedly bombarded by new stimuli without the continuous centring presence of his mother, who you said will be working during that week. You are quite right to be concerned about who would be looking after him while she is otherwise engaged.
Your plan for her to instead spend 10 days with him in Jamaica seems eminently more in keeping with his best interests and his overall welfare. I cannot understand his mother not recognising this fact, though I understand her pride in her son. She must, however, put his needs and best interests first and ask if such a trip would be of any benefit to him.
I do not think you are being harsh and applaud your interest and concern as a father and your attempt to play a positive and active role in your child's life.
You ask what, if any, are your legal rights in such a situation.
Well, dear father, the legal position in all the countries you have mentioned is the same. Your name being on your son's birth certificate is not enough to enable you to exercise legal rights as such, since you and the mother are not married. You will have to have joint custody of your child in order to do so.
This means that before you can exercise the right to make decisions about your son's life and welfare, you must have a legal order which first recognises you as your son's father in a declaration of paternity and, secondly, an order with his mother of joint custody, or sole custody to either of you, of your son.
The award of custody would enable you to make all the decisions necessary for your son's welfare and development. It announces to the world (to anyone who needs to be so informed) that you have that right — the right of authoritative decision making on your son's behalf for his welfare and development.
I would (as I tell all unmarried parents) advise you to apply here in Jamaica, as your child lives here, for a declaration of your paternity and for joint custody with his mother, with care and control to her and access to you. You must ensure your legal certainty as your son's father so that you are assured of the enjoyment of your rights as such in the future.
You cannot be certain that your relationship with his mother will survive all the vicissitudes of life and it is not unknown that sometimes when a relationship falls apart, the parent with care and control of the child seeks to deny the other any right of access. In such circumstances, if you do not have your legal orders in place, you would then have to scramble to apply at that time in order to even be able to see your son, let alone have the right to make decisions about his life.
Let me ensure that you understand the meaning and effect of the terms.
"Legal custody" gives you the legal right to make or participate in all the important decisions about your son's life.
"Care and control" refers to the day-to-day care of the child.
"Declaration of paternity" is a legal declaration that you are the father of the child, with the rights and obligations of such a status.
If you do not have a legal order to share custody with your son's mother then she can exclude you from participating in all the important decisions which must be made throughout your son's development. She may be morally bound to involve you, but not legally, without a court order in your favour.
So please contact an attorney here in Jamaica and apply for your declaration of paternity and orders for joint custody and for access to your son. It is clear from this decision of your son's mother, which has caused you concern, that you clearly need to be effectively part of the decision-making process in your son's life, and the sooner the better.
In order to injunctively prevent his departure, you will have to have the legal status and right to do so. If you have filed you application for what I have advised, you can then ask that your son ought not to be removed from the jurisdiction of the court until the matter is concluded. In such circumstances, the court would generally accede to such a request until it makes the final orders in the matter.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give advice via e-mail.
The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.