American dad kidnapped my child

Dear Mrs Macaulay,

I have a daughter who is an American citizen. She had been living with me in Jamaica. In 2010 her father came and asked if she could spend the Christmas with him there. I sent her and he hasn’t sent her back and to add fire to fury he changed his telephone number so I can’t contact her. She is only eight and she needs me. He keeps coming back to Jamaica and bragging about how I will never see her again. I have tried so many avenues but keep hearing, “sorry we can’t do anything because she’s an American citizen”. Can’t they do something when he comes here? He does not have custody of my child.

Wow! How did you manage to be so fooled by your child’s father and fail to be truly prudent and cautious about your child?

I ask this because you say at his request, you sent her to spend Christmas and he has since refused to send her back and boasts that you will never see her again. You also say he has changed his telephone number, so that you cannot contact her.

Do you by any chance have his residential and work address? You made no mention of this in your letter.

My million dollar question is — do you have an order granting you sole legal custody and care and control of her? Or, were you comfortable with the fact that she had been living with you here in Jamaica and so you felt that consequently, you had legal custody and not merely actual custody?

If the latter question represents what was the true circumstance, then you did not do all that you should have to secure you child’s safety, welfare and best interests.

If indeed, without securing her to your care with a legal order, you just sent her off to her father in America, this was really a bit thoughtless and/or careless of you, don’t you agree?

I know that you must be castigating yourself about it and suffering badly, so I will say no more except to tell you what path, in my view, is now open to you to try to get your daughter back or at least have access to her. In my opinion, you must go and make your application in America in the city or town where your child’s father resides. I base my opinion on the assumption that you indeed do not have a legal order of custody, care and control.

You must go there and apply for custody, care and control of your child as quickly as possible. The more time passes, the more difficult you make your chances to get an order which will uproot her if she has really settled down in her father’s house.

You must, in your supporting affidavit, include the fact that you were her sole custodial parent from birth (if this was so, or from when), and that she resided with you in Jamaica with the father having had liberal access to her. You must say how he boasts that you will never see your child again. Include also the fact that he changed his phone number. These are acts which no children’s court judge will look upon favourably.

You must also include that in Jamaica she has family and extended family members who were part of her life as they assisted with her care and welfare.

You should also ask for an order to permit you to bring your child back to Jamaica where you can continue to give her the care she needs. Access to the father can also be ordered and in the circumstances they should be supervised and within Jamaica.

If the court there does not wish to uproot her and give you custody, care and control of your child in Jamaica, then you should insist on access during all her school holidays here with you in Jamaica and that her father should meet the expenses of her travel.

You can also apply for custody, care and control to the Family Court here in Jamaica and serve him with the application when he visits. However, such an order can only be implemented in America if he resides in one of the states with which Jamaica has a reciprocal agreement.

I lean toward the application in America. I know it will be expensive but he might pre-empt you by doing so there and if you want to contest it, you will have to go there anyway.

But do not wait for him to do this please, try your utmost best to go there and make the application so you can get your child.

Good luck.

Margarette May Macaulay is an attorney-at-law and a 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 advice via e-mail.