Applying for custody from abroad

Dear Mrs Macaulay,

My husband is from Jamaica and has a three-year-old daughter with a woman there. I am German and my husband is living in Germany with me and our child. The mother of his daughter asked him to take the daughter so she can grow up here. We agreed and sent all the relevant papers there, but now the Embassy wants a paper from the court showing that he has sole custody. The mother went to the court and was told that only the father can apply for sole custody, and he has to be there to pick up the form and later for the court appointment, even though she fully agrees. But that is a big problem for us because he cannot stay for weeks in Jamaica or fly in between the appointments and back. It is a financial burden to fly to Jamaica and the child cannot fly alone He would have to pick her up anyway, but to stay over a month there till a decision from the court comes, and after that wait on the Embassy, it is just not possible.

Is there an option where he can sign the application from abroad or do the whole process from abroad? The mother agrees so it is not a fight for sole custody.

To put your mind at rest, let me tell you at once that it is not impossible for your husband to make his application and have it heard while he remains in Germany, because the Supreme Court has entertained virtual appearances for some years now, if the reasons for such a facility to be used are accepted by the court. The Family Court also has this virtual facility

What your husband must do is retain a lawyer here because it is not just a form which has to be signed, even though the mother of the child agrees that he should get sole legal custody and care and control of their child (which is what his application should be). There are many things which have to be included in his application which only a lawyer with experience in such applications can prepare with his affidavit in support of it. I also suggest that an affidavit from you ought to also be prepared, in order to satisfy the judge of your agreement to have the child live with you and to help to take care of the child, etcetera. You must say who are the persons who reside in your home with you, if any. A study of your home situation would also be necessary to support the application. Your husband must also ask the court to add an order that the child can travel to and reside with him and you in Germany,

Then your husband’s affidavit in support must deal with the fact that he is the child’s father and has always acted as and performed his fatherly obligations. He must then detail the arrangements he has made for the child when she arrives in Germany and is residing there. For example, which school she would attend (and if he has a letter from the school to the effect that she has been accepted as a student, this would be great and can be exhibited in his affidavit). Her birth certificate would, in fact, be the first exhibit in his affidavit. He must also state which church she would attend and receive religious education, and if she has any health issues which are serious and of some concern. If the latter, then he would state that she can have the appropriate medical treatment and that she has been registered as a patient with a doctor duly qualified to oversee her medical needs. Any document about this would be of great assistance by being exhibited on his affidavit. He must also state whether he alone, or with you, will be responsible for the provision of her maintenance.

Anyway, when his application and affidavit and yours are done, and they have been transmitted to you to be signed, I strongly suggest that you find a Jamaican consulate where you can both go and sign your respective affidavits to be witnessed there by the assigned consul/consular officer. This would be more ideal than you signing them before a Notary Public there.

Then your husband would return the documents (remember to keep a copy of what you have done and signed and had witnessed) to his lawyer, who would have them filed in court and served on the mother.

Then the mother should take the documents to another lawyer and instruct that lawyer that she needs to do and affidavit in answer stating clearly that she agrees that the father should have custody, care and control of the child and for the child to go and live with her father and his wife in Germany.

I hope that you can see that your husband definitely needs the assistance of an attorney to do the application for orders of sole legal custody, care and control so that the child can travel with him to Germany to reside there. Then after the orders are obtained and the original and certified copies — at least four — are obtained from the court, then he could apply for his child’s visa online and ask for the mother to be permitted to deliver the child’s passport to the Embassy and collect it after it is issued. Remember that a certified copy of the orders must accompany the application for her visa.

That is all I can think to advise at this time. If you or he has any difficulties for which you need answers, do feel free to write to me again.

All the very best, and I sincerely hope that you and your husband succeed because you three are doing a wonderful thing in amicably settling the child’s further life jointly, and I believe in her best interests.

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.