Custody battle warning

Jamaicans have been cautioned to exercise extreme care in sending their children overseas to parents and guardians amid growing concerns over transnational custody battles.

The trend of children being retained without parental consent is gravest during the summer holiday months, according to anecdotal analysis by the Jamaica Central Authority, a subdivision of the Child Protection and Family Services Agency (CPSFA).

There has been a steady increase in such cases over the last three years, with wider family members cited as being complicit in receiving parents’ undeclared intentions, The Gleaner understands.

Charles Young, legal officer at the Jamaica Central Authority – which has the responsibility of facilitating the return of Jamaican children who have been wrongfully removed or retained from their place of habitual residence – has pointed to the worrying incidence of parents unilaterally claiming primary oversight.

In a recent case of JG v ST, in which the Authority had intervened and which was heard by the courts in May, the claimant resident in the American state of Pennsylvania had a relationship with the defendant living in Jamaica.

The union produced one child, KG, who was born in Jamaica and primarily resided with the defendant in the island up to July 2019.

That same year, the claimant and the defendant entered into a verbal agreement that facilitated KG’s relocation to the US. KG to reside with the claimant and his wife, with the defendant having visitation rights every summer, winter, and alternate Easter vacations.

The parties abided by the agreement until July 2021, when KG travelled to Jamaica for summer vacation but was not returned to the claimant in the US.

After numerous refusals by the defendant to return the child, an application was filed under the Hague Convention in the United States. That application was then forwarded to the Central Authority in Jamaica, the CPSFA, which then filed a fixed-date claim form in the matter.

The Jamaica Central Authority is appealing to parents to be on the alert and to be fully informed about the details of their child’s travel plans.

There should be frank, honest discussions on the specific location of the child’s stay, said Young.

“We’ve had matters before where the parent that is receiving the child hasn’t disclosed the location of the child for a number of reasons,” Young told The Gleaner.

Rationales for non-disclosure include a fear of retribution from other family members, especially where relationships between the parents have soured because of separation, divorce, or other disruptions.

Parents are urged to know who the child will interact while abroad while ensuring that clear timelines for return are mutually agreed ahead of the trip.

Both parties should also put their agreement in writing, with the date and signatures. That evidence could be crucial to the fate of the case.

“The truth of it is, I know it might be a bit odd for most parents to put it writing and have to sign to that. But you know what I’ll tell you, in every instance where we’ve had an application, whether it had to go to court or not, the parent always says, ‘Boy, if me did ever know,’” Young said.

He also advised that parents obtain a consent order or court order from the Family Court.

The relevant legislation, the Children (Guardianship and Custody) Amendment Act based on The Hague Convention on the Civil Aspects of International Child Abduction, seeks to protect children from the harmful effects of abduction and retention across international borders securing their prompt return.

“You will never know how perfidious, or vitriolic, how wicked somebody can be until them do the wickedness ... and so the best thing you can do is to protect yourself or to protect the best interest of the child and put it in writing,” he said, adding that certification by an attorney, justice of the peace, or notary public would be helpful.

Young said that even in disputes where parents may have the interests of the child at heart, custodial battles inflicted severe psychological pain on young children embroiled in the tug of war.

“We like to think that they don’t know a lot and we undervalue how much children appreciate and internalise things [but] they do understand what’s going on,” he said, arguing that social enquiry reports often provided evidence of the trauma.

Citing the Central Authority as having a 100 per cent success rate of locating children, Young said that within a year of the child being wrongfully removed or retained, the court has a duty to return the child unless one of the exceptions have been proved.

But after a year, the court only has a discretion to return the child.

Nonetheless, the Jamaica Central Authority has been able to return children within six months.

Twenty-five countries are signatory to the October 25, 1980, convention on the Civil Aspects of International Child Abduction and have accepted Jamaica’s central authority, including Canada, the United States, and the United Kingdom.

If a child is wrongfully retained or removed and is from a country outside the 25 countries, the parent would have to seek relief through the courts.

The Jamaica Central Authority hopes to get more Caribbean countries on board.

Persons wishing to make an application to report cases may email the JCA at jacentralauthority@childprotection.gov.jm.

asha.wilks@gleanerjm.com