All Woman

Legal custody, a passport and a deadbeat dad

By Margarette MACAULAY

Monday, April 09, 2012    

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Dear Mrs Macaulay,

I was granted custody, care and control of my baby by the Family Court in 2006. The father, an American who lives in the US, was granted "liberal access" in Jamaica and phone access every weekend. He has used this access once since it was granted and has not seen our child since. He is years behind in child support. His last call was in December, and he wasn't consistent before that with calling on weekends.

I went to the US embassy to apply for a renewal passport for my daughter to travel with me this summer. The embassy requires both parents to give permission for a minor's passport unless the applying parent has sole legal custody. The parent with sole legal custody needs to give evidence of sole authority to apply (through a court order granting sole custody to the applying parent unless child's travel is restricted by that order); or court order specifically permitting the parent's travel with the child.

The embassy refused to accept my custody order, stating that their lawyers had rejected it. In essence, they say my court order does not give me the right to apply for a passport for the child.

What can I do? I was under the impression that 'custody care and control' meant that I had full legal custody. Can I petition the court to amend my order to specifically allow for travel?

The father has maliciously refused to sign a passport consent form, because I had previously cancelled a trip to visit the state he is in. He has laughed at me, stating that he won't consent until he gets residential access in the US. He has, in the meantime, alerted the State Department that I'm not to be issued a passport, placing me on a list with parental kidnappers.

We have a court date in the Supreme Court this May, where he has a petition for residential access in the US. This petition has been in the Supreme Court for three years, and at each court date he is denied this access. What can I do the next time I go to court? He is, for all intents and purposes, a deadbeat dad, who is using this sole source of power to frustrate me.

Thank you for your letter. I am frankly disappointed with the "opinion" of the embassy's lawyers, which caused your application for the renewal of your child's passport to be rejected.

It seems to me that the lawyers should have acquainted themselves first with the way our orders are drawn up, and secondly, what the terms used therein mean in law, in fact and in practice, before giving their opinion upon what action could be taken to a person's detriment -- as happened in your case.

They ought to have found out that when our courts grant an order with the words "custody, care and control" of a child to one parent, that the word "custody" in the order means that that parent has the sole legal right to make all the decisions necessary for the relevant child's upbringing, during the life of the order and until the attainment of majority or otherwise.

They ought to have ascertained that from the time you were granted that order, you had the sole legal right to decide about all or any actions of your child -- that only you have the right from the date of the order to decide where your daughter can go and with whom.

They should also have understood that the words "care and control" in the order placed the child in your day to day care, to reside with you in your home.

They should also have ascertained that the only "right" granted to the father of the child was the granted access to him as appears in the order -- no more and no less.

You state that he has utilised his access only once since the order was made and he has not seen the child since then. You also state that his last phone call was in December having been inconsistent before that. So he has chosen to exercise "less" access than that which was granted to him in the order of the court.

You clearly have sufficient evidence of his lack of sincere interest in his child, and this the court seems to have consistently concluded by refusing his application for residential access in the United States.

You ask what you can do about the embassy's refusal and whether you can petition the court for an amendment of your order to specifically cover the right to travel.

You have pointed out that you and the father of your child are due to appear for a hearing in the Supreme Court soon.

Yes, you can and should apply to the court for your order of custody, care and control, not to be amended, but to be varied and clarified by the addition of the following orders which I suggest, or similar ones to achieve your purpose:

1. "That the claimant mother shall have the sole right to apply for all travel and any other legal documents on behalf her said child (name of child) the subject of this order.

2. The claimant shall have the right to travel at any time with the said child or permit her to travel with some other authorised person, either within Jamaica and to any country outside of Jamaica.

3. Such further and/or other orders as shall be met.

You must have the application done quickly and it must be supported by your affidavit in support, explaining why you are making the application. State in it what happened when you applied for the renewal of the passport, exactly what the embassy said their lawyers said and the father's reaction to it, including his false report to the US State Department (which ought to be recognised as a clear case of public mischief on his part).

I am sure you would already have answered his application for residential access with a clear and detailed affidavit in reply. Well, this will be a new application of yours, on which your lawyer should insert the same date of the hearing as you are the same parties and both matters relate to the same child. It therefore ought to be and could more conveniently be heard together. I have urged you to act quickly to file this application so that it can be served on him in sufficient time for it to be heard on the same date.

I assume that once the court orders spell out in detail that you can apply for your daughter's travel documents and that you can travel with her, that the embassy lawyers will then have no difficulty in understanding the import of the orders granting you legal custody, care and control of your child.

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. Mrs Macaulay cannot give advice via e-mail.

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.

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