All Woman

My ex-wife fled the country with our son

Dr. Margaret Macaulay

Monday, September 10, 2012    

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Dear Mrs Macaulay,

My son was born to my former wife and I during our marriage. We got divorced and our court settlement stated that I should have unlimited access to my child. A few years later she took me to court for maintenance because she wanted more money. The judge ruled that I should see my son every other weekend and half holidays. She got married, was filed for, and left the country to become a permanent resident of the United States. I was not told she was migrating with my son until she was actually in the United States. Can this happen and what recourse do I have?

Thank you for your letter.

From the contents of your letter, I understand that your ex-wife was granted custody, care and control of your son. These, along with the access and maintenance orders, were in your court settlement.

Her actions have now caused her to be in breach of your access order, and she is therefore in contempt of court. I suppose because she is outside the jurisdiction of the court you are concerned that nothing can be done. This may not be the case.

The first thing you need to do is to ascertain whether or not she is residing with your son in a state in the United States which has reciprocal arrangements with Jamaica. This is to say that Jamaica and that state have signed a treaty agreeing that they would, inter alia, enforce each other's orders and judgements. Jamaica currently has reciprocal agreements with only three states in America -- Maryland, New Jersey and Florida.

If your ex-wife and son are living in any of these states, then your recourses are pretty straightforward. Your attorney can set afoot the necessary steps which the legal and the foreign affairs authorities here in Jamaica must effect in order to have your order enforced by the US government and legal authorities against your ex-wife.

However, as your son has been and is residing abroad, the 'every other weekend' part of your access order cannot now realistically be met; but the part for half his school holidays can still be enjoyed by you.

I would suggest that before getting the authorities moving, that your attorney apply to the court to make orders consequent on your ex-wife's contempt by her intentional breach of your access orders. I believe her act was intentional because she knew of the order and throughout her immigration process, said nothing to you of her plans and then just removed the child from the jurisdiction.

Though she had custody, care and control and therefore is able to decide where your son can reside, you also had the right to access and the fact that she has custody did not give her the right and the legitimate power to remove your son from the jurisdiction without applying to the court to vary the order for your access in view of her plans to immigrate.

In such circumstances, the court would have acceded to the variation and then made specific orders for you to get access during your son's school holidays. This is the type of order which I am suggesting your attorney ought to apply for and obtain, as well as a finding that your ex-wife is in fact in contempt.

Your attorney can then proceed to ensure the execution of these orders by the authorities of the state where she is residing, providing it is a reciprocal state.

If she does not live in one of these states, then you will have to make arrangements to go to the US and apply to the court there, either for your ex-wife to abide by the access awarded to you pursuant to the legal order made upon her application here; or, in the alternative, that the US court grants you access of one half of your son's school holidays with you here in Jamaica.

Your attorney would need to obtain certified copies of the Jamaican orders which were made on the custody, care and control and access to your son, as well as the decree absolute dissolving your marriage.

Please get things moving quickly. You do not want to give her a chance to make any adverse comments about your interest in your son, however spurious they would be.

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 allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give personal advice.

DISCLAIMER:

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.

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