Mom wants to move children abroad
Dear Mrs Macaulay,
I have two children with my ex-husband. In the divorce papers it states that my children are to reside with me and the father has reasonable access to them. Now that I am remarried and want my children to live with me in Germany, do I need the consent from my ex-husband for my kids to move? I had asked him to before to sign a consent form and he said no, as he is not giving up the rights to his kids.
You say that in the course of your divorce proceedings, you were given care and control of your children, which is what is meant that they reside with you, and your ex-husband was given reasonable access to them. You have, however, said nothing about the award of custody, which was probably ‘joint’ to both of you.
You have remarried, and it seems that you and your new husband live or wish to live in Germany and you naturally wish to have your children there with you. You have asked your ex-husband to consent to this but he has refused and you clearly wish to know what, if anything, you can do about this impasse.
You must make an application to the Supreme Court by way of a Notice of Application for Court Orders, using the same claim numbers of your divorce proceedings which determined the arrangements for the children. You should apply for a variation of the existing custody, care and control and access order to be changed to:-
(1) Joint or sole custody as the court considers best in the circumstances. You must give full particulars about what the lives of you and your children would comprise in Germany, even the type of premises and the rooms where you would live, the school(s) they would attend, and their religious instructions and practice.
You see, if the order was ‘joint custody’, then you and your ex-husband have and are entitled as a matter of right to make all the important decisions about the children’s lives and developments together. This is not about day-to-day matters, but about important matters like the type of schools and church they attend, and the receipt of serious medical treatments involving operations or radical treatments.
(2) Care and control to you in Germany. You will have to convince the judge that this is in the best interests of the children;
(3) That their father is to have access to them in Jamaica during their school holidays and that Christmas be alternated annually between you both, and that he will also have access to them via Skype, messaging, and telephone calls at reasonable hours of the day, once or twice or more a week.
(4) That you and your ex-husband share the costs of their travelling to and from Jamaica.
(5) That what is appropriate with regard to their maintenance is ordered.
(6) And such further and/or other order as shall be considered necessary in the circumstances.
These are what I suggest you apply for in your variation application. There is no guarantee that you will succeed, but it is the best chance you have. You should have, in addition to your affidavit in support of your application, an affidavit from your husband making clear his consent to have the children live with you and him, his current relationship with them, and that he wants this to continue. He can add whatever benefits he feels they would have by living with you both in Germany.
Please contact your lawyer and proceed with the application. There is no other choice that you have. You must get the order varied by the court.
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 personal responses.
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.
