I want to take my child to the US

Dear Mrs Walker-Huntington,

I am getting married to a citizen of the United States of America and I do not want leave my child behind. There is a court order and I have primary care and control but it is joint custody overall. What would be the best step to take as the co-parent is against the child’s leaving? I am the sole parent doing everything and the other parent ‘pick and choose’ when they feel like being involved. The other parent does have visitation rights but sometimes doesn’t even do pick up.

Concerned Parent

Dear Concerned Parent:

Since you have primary care, you could proceed with the stepparent filing for your child and go with the child to the US Embassy for the interview. I would also assume that you have the child’s documents. To do so in opposition to the non-custodial parent’s wishes could result in serious repercussions against you.

The non-custodial parent does have a say in where the child will reside, because you have a court order giving both parents joint custody. If you take the child out of Jamaica without the written consent of the non-custodial parent or a court order, you will be in violation of the existing order. As you plan to leave the country, the non-custodial parent’s visitation rights would be changed and must be addressed.

You should be in touch with a family law attorney in Jamaica to file the necessary documents with the court to modify the existing court order and to legally allow you to take your child to the United States. The court order should also address visitation and parental contact and child support. It is up to the non-custodial parent if they want to exercise visitation and contact with their child but, if child support is court ordered, they must fulfill that obligation.

If you leave Jamaica without the court order and the non-custodial parent wishes, they can go to court and get an order for you to return the child to Jamaica. That court order can be executed in the United States to pick up the child and return him/her to Jamaica. It could result in kidnapping allegations against you and could result in your losing primary care and control of your child. There is also the potential of the involvement of the governments of both Jamaica and the United States in an international custody matter.

Dahlia A. Walker-Huntington, Esq is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com