Mother sneaked child out of Jamaica and away from father

Dear Mrs Macaulay,

I am writing on behalf of a concerned father who had not seen or heard from his son in over five years. He recently managed to make contact with his son, who is in New York, through the child’s uncle. However, the communication stopped when the mother found out that her brother was taking her son to his house and allowing him to contact his father. The son, from birth, had been living with his father and grandmother in Jamaica, with weekend visits to the mother after their separation. One weekend, the mother asked to spend time with their son as she would be leaving for New York in a few days. She took him for the weekend and he was never seen or heard from again, until the father found out that he was in New York. The father is very depressed and would like to at least be able to speak with his son. Jamaican men are known to be deadbeat fathers, but here is one who wants to see his son again and talk to him. Please advise us on what we need to do.

This is a very unfortunate situation, and in recent years both mothers and fathers have been guilty of this behaviour. These parents are not acting in the best interests of their children. They are selfish and indifferent to the psychological trauma and suffering they inflict on the children by acting in such a sudden and surreptitious manner — taking them out of the country and ensuring there is no contact with the other parents.

The effects of such an act will definitely show up, if not immediately, then in the children’s later lives. This woman, the mother of this child, has done great harm to him and has wounded him and the father deeply. For a parent to suddenly and secretly remove a child from the parent who had care and control of that child for some years, it has all the elements of the offence of ‘child stealing’. However, a mother or father who does this cannot be prosecuted for this offence.

In addition, as the mother took the child to New York, this curtails what the father may do to resolve the situation. You see, he cannot now go to court here to obtain an order for the lawful sole custody and care and control of his son and seek an order for the son to be returned to him. This is so because there is no reciprocal arrangement (treaty) between the State of New York and Jamaica, whereby the orders of their respective courts would be enforced in each place. There are other states with which such agreements are in place, but not New York.

It therefore means that the father would have to go to New York and make his application to the family court there, for custody, care and control of his son or only for access to his son. Other parents have had to do so. Some have succeeded and others have not. It depends on how long the child has spent residing there with that parent, as the courts there also apply the principle of the best interests of the child and may decide not to uproot such a child again, if the child has settled down for a good while. This will, of course, be costly, and the father would need to have a visa to enable him to travel there and stay for the duration of the hearing. He could, of course, instruct a lawyer there to act for him and file the application while he is still here in Jamaica because of the advances in communication technology, and then only go for the actual hearing in court.

If this course is impossible, then he would have to just keep in touch with the mother’s brother to assist perhaps in having someone who can influence the mother to at least do what is right for her son and permit him access, at least by telephone and Skype calls. If she is a religious person, perhaps it can be approached from that angle to pressure her to think of her child’s rights to have a relationship with his father, and that a relationship with his father is necessary for his emotional development. She must stop being selfish and think first of her child’s welfare. I hope this can be attempted and that it works.

I am sorry that the course for the father is a difficult and expensive one. I hope other parents who have the de facto custody and care of their children learn from this, and apply to the family courts in their parishes for their custody, care and control to be made legal, and that when the other parent resides abroad, to ask for the court to make an order that the child should not be removed from the jurisdiction without its permission. Then this can be followed with a stop order preventing the travel of the child without the court’s permission.

I do hope the situation improves for this father, but he must persist in his efforts until he succeeds.

God bless 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. 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.

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.