Dear Mrs Macaulay,

I allowed my child’s father to file for our son, with the promise that he would send him back to Jamaica on holidays for visits. It has been two years since I have seen my son, as he refuses to send him back, and says I should visit the United States (US) instead, even though he knows I don’t have a visa. What can I do? I have little to no contact with our son and can’t afford legal fees.

My goodness, what possessed you to agree to hand over your child to his biological father on his mere promise to send the child for holiday visits here with you? You effectively gave the father legal custody and care and control of your child, which is normally only done by an order of the Supreme Court or a Family Court judge upon an application. I am sorry to say that you did not act sensibly.

You should not have made the decision you did without first seeking and obtaining professional legal advice, especially as the father was filing for your child to reside in a foreign country, and not even another Commonwealth country at that!

I cannot understand why you trusted his word. You were clearly not a couple any more. I am always very angry and upset when mothers treat their rights and obligations to protect and care for their children with scant regard, as you did in relation to your child and his rights. You did not safeguard your right to have access to him, or his right to spend time with you and have a relationship with you.

You were foolish two years ago, and you are also foolish now, in that you have not even told me in your letter which State in the US your son and his father are residing. I cannot therefore tell you, if you apply for an order here now, whether you can enforce the judgement in his State of residence.

You see, as the United States is a foreign country, and a republic of States at that, the only way an order of a Jamaican court can be enforced there, would be if that State and Jamaica had signed a treaty in which they agreed to enforce each other’s court orders. This is one of the matters, had you consulted an attorney before you agreed to accept your babyfather’s promise, that you would have been warned about.

In fact, you should check on this now at the Ministry of Foreign Affairs and Foreign Trade. Find out whether the State they are living in has a ‘reciprocal agreement’ with Jamaica to enforce our judgements and orders.

The question above has to be answered first, so that you can know what you can do about the situation you and the boy’s father have caused. For instance, if there is a reciprocal agreement with the State, then you can decide to file an application here in Jamaica to ask for legal orders to be made so that you and the father can have joint legal custody of your son, with an order for care and control to be to the father, as you clearly were of the view that your son should live with him in the US while you have legal access to him during his holidays in Jamaica. The orders should also specify how and who shall be responsible for the expenses of his travels, whether the father solely, or whether it should be shared by you both, and in what proportions. This latter would depend on your respective financial abilities.

Or, you can decide to go and file your application in the relevant court where your son and his father reside in the United States and obtain the appropriate orders as I stated above. I advise that you make clear in your applications, wherever you file them, that the father by his breach of his promise has demonstrated that it was all a false pretence on his part which he got you to believe and accept. Please in doing so be as specific and honest and truthful as you can about exactly what he promised. Though you were wrong to merely act on his promise without obtaining any legal advice, the greater fault is his.

These are the only two possibilities that you will have, but only if a reciprocal agreement exists between Jamaica and the State in which they reside in the USA. If there is no such agreement, then the only option you have is to obtain a legal order for legal access to your son. Legal orders would impose and regulate the father’s obligation to both his son and to you, based on the contractual agreement he sought when he made his promise to send your son to visit you, and which he breached after you had performed your part. You should use the false pretence argument, and his breach of what was a contract between you.

As I stated before, the existing situation is not only a breach of your rights, but it is clearly also a complete breach of your son’s fundamental human and legislative rights to have access to both his parents and to have a relationship with each. The father’s breach has prevented this, and this is clearly not in the best interests of your son in any way or form. You must therefore act and make every effort to rectify this unacceptable situation.

You must also demand that your son be in regular communication with you, after all, in this day and age, communication is not only foolproof, it is free. Insist on this. Do not beg for it, insist on it. It is your right and your son’s right also!

You should also go to the Family Court of your parish and tell the clerk of court the full report of what happened. Court applications in the Family Court are free of charge. Tell the clerk that you wish to make the applications I have suggested — for joint legal custody and care and control to the father, and specific legal access to you here in Jamaica on your son’s school holidays, and that the father pays for his travelling expenses. But remember, this is only if there is a reciprocal agreement between Jamaica and their State.

I also suggest that you try and apply for a visa, in case there is no reciprocal agreement, as you would then have to travel to the US to not only see your son, but to also make your application to the court there.

Please do all you can to make sure that your son has a meaningful relationship with you throughout his life. I wish for you the strength to act, and the very best.

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. All responses are published. Mrs Macaulay cannot provide private, personal responses.