American dad says he’s better able to care for child

Q: Dear Mrs Macaulay,

I am writing you on behalf of my brother who is a US citizen. He would like to apply for a visa for his daughter who is a Jamaican citizen and who lives in Jamaica with her mother, a Jamaican citizen. His daughter is three months away from her second birthday and he would like her to reside permanently with him in the US. However, his baby’s mother is refusing to let the child reside permanently in the US, or even visit. He is concerned about his daughter’s well-being as she is not being properly taken care of, and all his baby’s mother is interested in is money. He would like to know what steps he can take for his daughter to reside with him in the US in view of the mother’s obstinacy. His name is on his daughter’s birth certificate as he did sign the paper in the hospital that allowed for this, and he has a photocopy of the birth certificate.

Your advice would be greatly appreciated.

A: I have noted your brother’s concerns for his toddler daughter as reported by you in your letter. He seems, from the inception, that is from her birth, to have been a truly committed father. He did what all fathers are being enjoined to do. He declared and signed to his paternity and was duly so entered on her birth records and therefore so appears on the certified copy of her birth certificate. This was very good and responsible of him.

You also say that your brother wishes to have his daughter permanently live with him in the United States, but that her mother has refused this plan and that she will not even consider visits to her father there.

You also add that the mother is only interested in money. This statement implies that your brother has been providing financially for his daughter. If so, this is also very commendable of him.

You state further that your brother is concerned about the child’s welfare and development because she is not being given proper care. You did not give any details about the lack of care alleged. I hope that your brother has clear evidence to support this allegation, as he would have to state them evidentially on oath to and/or in court.

You see, your brother, who resides in the USA, must obtain the services of a lawyer here and instruct him or her to prepare an application for him for sole custody, care and control of his daughter, with access clearly specified to the mother. He must seek sole custody whereby he will have the sole legal right to make decisions about all the important decisions necessary for his daughter’s development and welfare and which would be in her best interests. For example, where his daughter ought to live, with whom and how, what school she ought to attend, which doctor should provide medical services for her, if any procedure is to be done or not; again with her best interests dictating and directing what his decision ought to be.

Your brother must apply for and obtain an order giving him care and control of his daughter because this is what would give him the right to have his daughter ordinarily live with him from day to day. He should, however, ensure that the mother also has an order for her access which must be specific as to when (for example for one, two, three or four weeks commencing from (date) to (date), where the access would be realised, if residential or otherwise, and how the necessary travelling would be effected.

His applications can be made to the Supreme Court or to the Family Court that serves the parish in which the mother and his daughter reside. In support of his application, he would need to state, in an affidavit duly sworn, the clear facts which prove that his daughter is not being properly cared for by her mother and why it would be in the child’s best interests for him to have sole custody and care and control of her.

Your brother would also have to exhibit to his affidavit in support of his application, a certified copy of his daughter’s birth certificate (obtainable from the Registrar General’s Department (he can go online to do so) because his photocopy would not be accepted by whichever court he applies to for his orders, as I have suggested.

Your brother must also arrange with a duly certified social worker where he lives, (he can get one through or with the assistance of the family court there), to do what we refer to as a social enquiry report and a means report. These must also to be exhibited in his affidavit. These reports must be prepared after his home is examined and he and family members have been interviewed as to the details of their lives, and their reactions to the plan to have the child live there. The person who will have primary care of the child would get more detailed attention. It should also deal with accessibility to an acceptable school, to medical services and details as to religious instructions and practice.

The means report must deal with his financial capability to provide adequately and properly for his daughter. The court must be satisfied that the child would have a caring, secure, settled and properly provisioned life.

So do tell your brother that if he wants his daughter with him, he must start making arrangements by getting his facts of improper care by the mother, the documents I have said he would need, and the services of a lawyer to prepare his application and affidavit in support with the exhibits. He should see to the filing of them, the fixing of the hearing date, and then to ensure service of them on the mother and thereafter appear at the hearing in court.

I wish your brother the best and since his matter would take some time, he should start his preparations immediately. Good luck to him.

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.