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All I want for Mother's Day is my three sons

A woman weeps for her children

By NADINE WILSON Sunday Observer staff reporter wilsonn@jamaicaobserver.com

Sunday, May 11, 2014    

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ALL Marie Berbick-Graham wants for Mother's Day is to have her three sons home with her.

Instead, she finds herself at the bitter end of a three-year custody battle, which took a turn for the worse over the Easter holiday when her estranged husband was able to secure an interim exparte protection order against her, barring her from any form of communication with them.

According to the order, first signed by Resident Magistrate Annemarie Nembhard on April 25 and then extended on April 30, the mother is prohibited from entering her matrimonial home, entering her children's school or making contact with them. Failure to comply could possibly result in her being convicted or fined.

Berbick-Graham is still at a loss as to how this order could have been granted despite the fact that she had been given interim custody of her children aged five, 10, and 13, since 2011, until a trial could be held to determine custody.

She was also never given an opportunity to make an appearance before the judge who made the order, although it was granted on two separate occasions.

"I don't understand how the judiciary system works in such a way where you can grant an exparte protection order against me the mother who has custody of these children without my even being given a chance to tell my story and then you extend that order, even though the matter was not heard," Berbick-Graham stated.

The document was filed a few days after the Child Development Agency (CDA) released an extensive social enquiry report that exonerated Berbick-Graham of a raft of allegations of abuse that were filed against her by her husband. According to the CDA report which was presented in the St Catherine Children's Court on April 7, 2014, the matter involving the three children first came to them in 2011 following reports made by their father.

"Reports are that the children are being cared for in an inhumane manner, that the mother is being physically abusive to the children, she would reportedly leave them unattended and unsupervised for long hours and sometimes at night. Children are often left with little or no food to eat. The lack of proper health care for the children is also of serious concern," it said.

However, following a series of interviews carried out over these years, the CDA noted that "based on investigations conducted and reports received from the children, housekeeper at mother's house and teachers, there is no evidence of physical abuse or neglect by mother."

Berbick-Graham said that she was interviewed by at least seven different officers from the CDA over the years, as each time she was vindicated; she was greeted by another officer from the agency wanting to interview her about allegations of abuse. In fact, after the latest report was read in court on April 7, another CDA officer was back at her house on April 10, without her knowledge interviewing her children again about allegations of abuse.

"Had it not been for the understanding of the CEO at my place of work, I could have lost my job based on the number of times I have had to go to court or report for interviews with the CDA," a frustrated Berbick-Graham told the Jamaica Observer.

Chief executive officer of the CDA, Rosalee Gage-Grey, said that she could not speak about this particular case when the Sunday Observer sought a response. However, she noted that the agency had a responsibility to investigate every reported case of child abuse.

"Once the cases come to the Office of the Children's Registry and are referred to us, we must visit and we must investigate, because each of them comes with their own reference number and we must investigate. Yes, we might have gotten a case, say, last week or last year, we cannot determine that the situation is not as it is. We have to verify and re-verify as often as the cases come," she said.

She said that the agency cannot determine if a report is malicious or not. It is the Children's Registry that would need to make such a judgement once the findings of the investigations have been handed back to them.

Berbick-Graham said that she does not support corporal punishment and noted that there had never been any allegations of abuse levelled against her until 2010 when she first sought to get a divorce from her husband whom she married in 1999. However, the divorce proceedings have been stalled because of the existing custody issue before the court. She has had to make appearances in the Supreme Court, the St Catherine Children's Court, the Family Court and the Civil Court in Spanish Town during the four years and has racked up over $3 million in legal fees up to 2013.

"What has happened is that each time we go to court and the trial is supposed to begin, Mr Graham comes with a new set of allegations which detract from us proceeding with the trial and as a result, we cannot get the custody matter settled," she explained.

Berbick-Graham showed the Jamaica Observer a copy of the exparte order that was granted by judge Simone Wolfe-Reece in February 2011 granting her interim custody, care and control of her three children and outlining that residential access should be granted on alternate weekends to her husband. An application for custody was to be heard on April 2011, and the matter eventually went to trial in the Family Court in late 2012. But this trial had to be halted because her husband's lawyer moved a motion in the St Catherine Children's Court to have the children removed from her care, citing claims of abuse.

With that matter thrown out by the court on April 7 of this year, the mother was finally looking forward to the custody hearing continuing on April 29. However, on April 25, her husband applied for and was granted the interim exparte custody order as well as an exparte protection order against her on behalf of her children. With this order being granted, the senior resident magistrate hearing the custody case on April 29 said that the matter would have to be adjourned until May 21 to allow for clarification on the protection order that was granted to her husband. Berbick-Graham was, however, told that she would no longer be barred from getting her children once the order had expired.

So, when the order had expired at midnight on April 29, Berbick-Graham went to pick up her children from school the following day, only to be told that she could not do so, as another restraining order was filed against her that same day and was in effect until May 21 when she goes to court again. The mother said that the documents were thrown on her verandah later that day, and with a heavy heart she had to pack up her children and take them to the Caymanas Police Station for her husband to pick them up from the inspector. She has not heard or spoken to them since.

"Everybody is shocked that something like this can happen. I am not abusing my children, so why am I before the court for three years battling false allegations and finally when I am exonerated by the court, I am back in court within three weeks and banned from seeing my children for the same allegations? How does that happen?" the mother asked.

When contacted, her husband Hugh Graham told the Sunday Observer that he will do all that he can to protect his children. He maintained that he is concerned about them and argued that the CDA is not doing enough to protect their interest. He said that he is not in support of the most recent report that was filed by the CDA.

"I am not in acceptance of that report, because that report does not in any way reflect the fact surrounding the matter. The report in my opinion was hurriedly done," he said.

"They don't care, we watch the news every day and we see how careless the CDA is in terms of protecting our children. They don't care, and if I was to leave my children's safety to the CDA, they would all be dead, that's the bottom line," he said.

Registrar at the Office of the Children's Registry Greg Smith has called upon parents to think about the best interest of their children in custody matters since they are often the ones most affected. He also warned that persons could be charged under the Child Care and Protection Act for making false reports of child abuse once it has been found that the allegations were malicious.

"If clearly it's over five times or so and none of these reports can be substantiated, it could be that somebody is making public mischief," he said, while adding that such an individual could be fined $500,000 or six months imprisonment or both.

He also questioned how one judge could have granted a mother custody of her children and then another goes and grants the father custody and a protection order barring the mother from communicating with her children.

The registrar said that he has noticed a trend where parents are seeking custody of their child or children primarily because they do not wish to pay child's maintenance to the next parent. Quite often, he said, claims of child abuse are levelled against that parent to discredit them.

"Sometimes because you don't want to have to now pay child maintenance, you think that, well, it is best for me to have the children rather than their being with the mother," he said.

"As adults, we have to make decisions in the best interest of our children, not because of our own selfish satisfaction and because we want to get back at someone. At the end of the day, you are hurting your own child, by doing all these actions," he warned parents.

Berbick-Graham said that she just wants the trial to get underway, so that a ruling can be made and her children can have stability. One of her sons has been getting counselling and with one being diagnosed with sickle cell and another being asthmatic, she feels that a speedy resolution is best. The mother said that her attorney has written to Gage-Grey on three occasions and copied youth and culture minister Lisa Hanna as well as CDA chairman Maxine Henry-Wilson on these letters. Henry-Wilson promised last week that an investigation will be done into the matter.

Berbick-Graham said that she decided to make her story public because she and her children have been made to suffer emotionally and psychologically as a result of the prolonged proceedings and the constant interrogation. She believes that this same level of injustice is being meted out to other mothers across the island, and wondered about those who might not have access to proper legal guidance to fight for their children.

"There seems to be no end in sight and this cannot be allowed to continue," she said. "The systems that are in place in terms of social services - they are inefficient and they are causing families to be destroyed. I am a good mother to my children.

"The loophole in the systems are causing innocent mothers to lose their children," she said.

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