Dad wants daughter with him in America

Q: Dear Mrs Macaulay,

I fathered a child who is now five years old and attending school in Jamaica. I will apply for an order of US citizen born abroad with the US Embassy in Kingston. Once I have her US citizenship, will I be able to bring the child to the USA to reside permanently? The child’s mother is aware of my plans and approves. It’s the grandmother who influences the child’s mother negatively (I don’t see eye to eye with the grandmother regarding my little girl).

I plan to send for the child when she turns seven. I have told the child’s mother that she can travel with the child as her guardian and stay as long as she wants.

I anticipate resistance from the grandmother, of course, as she sees my monthly maintenance as household income rather than for the child’s development. Should I go for full custody (sole custody)? I will allow the child to visit in the summer once she migrates, as it is important that she maintains her roots.

A: I note from your letter that there is no dispute that you are the father of your five- year-old daughter born in Jamaica and attending school here. However, because of your planned application through the US Embassy in Kingston, you will need the results of a DNA test to ground your application.

It is clear that you have been providing maintenance for your daughter, and you seem to suspect that her grandmother disapproves of your plans because she does not wish her household to lose the monies you send for your daughter’s maintenance.

You have asked whether you should apply for sole custody of your child. Let me assist you as best as I can with this. You say that the mother of your child is in agreement with your plans. If this is so, then you ought to discuss the issue of you having joint or sole custody of your child with her. You should both realise that the grant of ‘custody’ bestows the legal right and obligation on the sole parent or parents jointly to make all decisions about necessary developmental matters as they arise in your daughter’s life, until she attains her majority.

In order to have the legal right to have your daughter live with you, you must also obtain an order granting you ‘care and control’ of her. This gives you the right and obligation to have her live with you whereby you would then be responsible for her daily care and needs.

You therefore must apply for custody and for the care and control of your daughter with access to her mother every school summer holiday. Since she is already five years old and you plan to have her live with you when she is seven, you ought to make your application for these now, with your care and control and her mother’s access to commence on stated dates.

You see, since you reside in a foreign country, you will need to have prepared a Home Study Report by which the judge of the court (the Supreme Court or the Family Court) can be informed and be satisfied that your home, family members, environment, plans for her educational, religious practice and instructions, health services arrangements, transportation and daily and general care arrangements are the best that you can arrange for her and that they would be in her best interests. You need to state the exact school and exact place of worship. This generally takes some time to be properly done and completed. Therefore, the sooner you make your applications the better for the achievement of your plans by the time your daughter is seven.

You need not worry about sole or joint custody when you file your application. Just file for custody, care and control of your child with access to her mother every school summer holiday.

In your affidavit in support, you must be completely frank and candid about your present and planned future relationship with your child, and you must clearly and specifically state in it all the arrangements which you have made for her life with you and those for her welfare and development.

In your letter, you stated your concern about the grandmother’s expected opposition to your plans. You should not be concerned about this. It is her mother’s position which is relevant. The grandmother’s is not. The grandmother would only become relevant to the decision regarding your daughter if you and the child’s mother neglect or cause harm to the child, or you both disappear and leave her unprotected and destitute. So even if she passionately wants her grandchild to remain in Jamaica, this will not decide the issue.

The judge will decide the issue based on evidence before the court on the principle of what is considered to be in her best interests. Generally, it is considered best for a child to be with both parents if possible, or with either parent with access to the other one without care and control. This presupposes that the parent’s joint or separate homes are safe, wholesome and caring environments for the child.

In my personal opinion your plans indicate that you are a caring and responsible father who wishes to do the best for his child and to be present in and responsible for the day-to-day care of her, and in addition that you wish to assume the burden of making and acting upon all decisions necessary for her welfare and development. In addition, you seem recognise and plan to act upon the importance of her continuing relationship with her mother and mother’s family and country of her birth, so that she will ultimately have the bonds of both her maternal and paternal roots.

So please retain the services of an attorney here in Jamaica and proceed with your applications as soon as possible. Good luck.

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.