Worried about my daughter in the US

Dear Mrs Macaulay,

My child’s father was filed for a couple years ago by his dad. His first child was initially on the filing but she died, so my daughter replaced her. She got her immigrant status in 2011 at age five and left for the USA. She is now eight.

Later that year she returned in the summer for school as her dad thought it would be best for her to stay with me due to the challenges he was facing having to look after her. He said the separation from me was not healthy for her. He wanted me to come to the US but I refused because our relationship had deteriorated due to infidelity on his part. In December of that same year she went up for holidays and he refused to send her back. He was still insisting on making amends but I had suffered enough from verbal and physical abuse.

In March of 2012 he sent her back and I begged the principal, and she got accepted back in school.

As parents we decided that the instability was not good for her development and that she would remain in my care until 12 when she is old enough to manage herself better. My daughter and I would travel together to make visits to see her father during holidays.

Things didn’t go well recently. She was due for a holiday trip in the summer and the plan was for me to travel and take her back for school. Weeks before her travel he told me this wouldn’t make sense because he was living with someone now so I couldn’t stay at the house. I was happy he had moved on with his life. He told me he also accepted the person in my life, but that was a lie; he told me he didn’t want any man around his child. All that time he was still looking to make amends with me but I refused. I had also moved on with someone else.

When he came to Jamaica recently, he was still asking for forgiveness but I didn’t give in. My daughter left with him for the holiday break and was due back for school in September. When she arrived in the USA, he told me that immigration told him she couldn’t return until nine months’ time. Does immigration enforce timelines on how long a child stays in the USA before visiting her home country? He now lives with his new lady and her seven-year-old son, and my daughter. Sometimes days will go by and I don’t hear from her. He doesn’t answer my calls and he doesn’t reply to any letters.

It has been a real challenge communicating with her. Since they moved into the new apartment, I haven’t heard from her. Regardless of the differences between us, this should not affect my communication with her, as I have the same rights he does.

What are my rights to my daughter? I am worried and concerned.

The moving back and forth, residing between the United States of America and Jamaica, was a most unsettled way for any child to live, let alone one so young. You and her father were being selfishly irresponsible in doing this to the child and you completely ignored her best interests and welfare in causing her to live like that.

As an unmarried mother, you are entitled to the care and control of your child and if the father accepts his role at birth, later by declaration, or declaration of paternity is made by the courts, both of you would be entitled to custody and he to access, if you have care and control.

If he has care and control, which is what he has taken now, then you should enjoy access to your child. However, throughout the years, you do not seem to have applied to any court to ensure that by order of a Jamaican court, your Jamaican child, a citizen by birth, is assured all the protection and care to which she is entitled in law.

It seems that you do not know now the address to which they have moved. I hope I am wrong about this. If this is in fact the case, then you have been very careless indeed, as you permitted him to take your child with him for a “holiday break” despite his previous record of acting contrary to his word and taking and/or keeping her whenever he wishes. What did you expect on this last occasion? That he would abide by your agreement when he never really did so before? It seems your child kept being moved between you two according to his whim and contrary to her best interests.

Your legal options

You have the same rights as her father to apply for and obtain an order to have legal custody of your daughter, but it seems that you have never applied for this. Clearly, you must also have given permission in writing for the application for a green card to be made on her behalf and for him to take her with him from you and Jamaica on the first occasion when he did so.

How could you have not secured your right as a parent by obtaining an order for the legal custody of your child? You could have had it in your favour either solely, or jointly with her father.

A parent seeking legal custody must also obtain from the court an order for the care and control of the child. Again, both parents have the right to apply for this. An order granting a parent or person care and control means that person has the right to have the child live ordinarily, that is, day to day, with them and the obligation to care for such child every such day, except when the other parent has the child for his or her period(s) of access.

You and your daughter’s father seem to have been very lax about obtaining legal orders to ensure that she has full and proper legal protection. I have concluded this because you have not mentioned any order of a court in your long letter.

You must find out where your daughter is living now and apply to have legal custody, care and control of her, with access to the father during her summer school holidays. This would give your child the stability she needs in her life. Or, the order could be the other way around, with the father having care and control and you access in her summer holidays, in which case you should insist on an order for joint custody to you both.

You can apply here in the Family Court and the judge will decide what is in the best interests of your daughter and make the requisite orders to properly protect your child’s proper and wholesome development.

There should also be an application for her maintenance, which could be that each parent would maintain her when she is with them, or that the one who has access only contribute to her support.

Mother, it is up to you and her father to do all that you can to protect your child, always bearing in mind what is in her best interests. Your dissatisfaction with his conduct should play no part in you both being her caring and responsible parents, as your adult problems have nothing to do with her. Your anger and upset feelings are between you and the father and they should not be given priority by you over and above your child’s protection, her proper care and her best interests. Please do what is right for your child. Find out where the father has her now and make the applications you should to secure your parental rights.

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.

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.