This is a multi-part message in MIME format. ---------------------- multipart/alternative attachment QUESTION: My 27 yr. old Canadian born daughter is planning on marrying a Jamaican and having children in Jamaica. Would the children be Canadian or Jamaican? Could she bring her children permanently to Canada if the relationship doesn't work out? --------------------------------------------------------------------------- david ingram replies: The Children will have dual citizenship - They will be Jamaican by birth and Canadian by virtue of your daughter's citizenship. The question of her bringing the children to Canada is impossible to answer. The answer is yes, she "can" bring the children to Canada but she may not be able to if her husband wins custody in Jamaica. I have reproduced part of a significant case in Jamaica You can find the whole judgment at: http://www.google.ca/search?q=cache:w8o59IrmM9oJ:www.sc.gov.jm/Judgments/Judgment%2520M127%2520of%25201998%2520Marzouca%2520v%2520Marzouca.pdf+child+custody+Jamaica+-ny+-new+-york&hl=en&ie=UTF-8 I have reproduced the part where the judge granted joint custody and stated that the children had to be in Jamaica each summer and alternate years for Xmas. IN THE SUPREME COURT OF JUDICATURE OF JAMAICA JUDGE HARRIS I now turn to the matter of the custody of the children. The principal factor in the resolution of matters with respect to the custody of a child is centred on the welfare of the child. Therefore, in determining questions relating to the custody and upbringing of an infant a court must pay regard to the child's welfare. Section 18 of the Children Guardianship and Custody Act which establishes the principles governing the custody and the upbringing of a child, states as follows: " 18. Where in any proceeding before the court the custody or upbringing of a child or the administration of any property belonging to or held on trust for a child or the application of income thereof, is in question the Court in deciding that question, shall have regard to the welfare of the child as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father." -------------------------------------------------------------------------------- Page 5 5 It is manifest that neither parent enjoys a pre-emptory right to be the custodian of a child. A claim by the mother does not rank in superiority to that by the father; nor is a father's claim superior to that of the mother. The predominant concern of the court is the welfare of the child. It has often been conceptualized that the interest of a child of tender years is best served and protected by committing him or her to the mother's custody, provided the mother is fit and displays the capability of discharging the responsibilities of taking care of the child. This view had been recognized by Romilly, Master of the Rolls in Austin v Austin 1865 55 ER 634 at 637 when he stated: - " No thing, and no person and no combination of them can in my opinion with regard to a child of tender years supply the place of a mother and the welfare of the child is so intimately connected with its being under the care of them other and that no extent of kindness on the part of any other person can supply the place." Although Romilly MR had propounded that a young child ought to be reared by the mother and although it has been frequently proposed that a mother should be the recipient of custody of a child of tender years, provided this can be achieved without any mental or physical injury to the child, this does not buttress any presumption that a mother should be given preference as a custodian of a child. There is no presumptive right that one parent ought to be preferred to the other in the making of a custodial award. The interest of the child is the predominant -------------------------------------------------------------------------------- Page 6 6 consideration. This proposition was validated by Butler-Schloss in Re S (A Minor)(Custody) 1991 2 F.L.R 388 at page 390 when he declared: - "The welfare of the child is the first and paramount consideration. Under the Guardianship of Minors Act 1971, under which this matter is being dealt, there is no presumption that one parent should be preferred to another parent at a particular age. It used to be thought many years ago that young children should be with their mother, that girls approaching puberty should be with their mother and boys over a certain age should be with father. Such presumption, if they ever were such, do not in my view exist today. They are dicta of this court to the effect that it is likely that a young child, particularly perhaps a little girl, would be expected to be with her mother but that is subject to the overriding factor that the welfare of the child is the paramount consideration." In the case under review, the Petitioner wishes to have exclusive custody of the children of the family .The Respondent desires to have the benefit of sharing their custody with the Petitioner in order to participate in decisions relative to their welfare. He states that the Petitioner is a good mother. The fact that she is a good mother does not in itself grant her a right to sole custody of the children. It is necessary to emphasize that the need of any party to secure custody of the children is subordinate to their welfare. Mr. Steer, during his submissions, made reference to the respondent being an alcoholic. This was not denied by Mr. Foster who stated that he is receiving treatment for his alcoholism but that his alcoholism does no preclude him from being a good father. These submissions are of no evidential value. If the Petitioner intended to rely on any fact to establish that the Respondent ought not to be permitted to participate in -------------------------------------------------------------------------------- Page 7 7 the custody and upbringing of the children, then, evidence in support of her contention should have been presented to the court. The Petitioner removed the children from the jurisdiction without consulting the respondent. He is the father of these children and if the petitioner thought it fit to relocate, taking the children with her, their removal from this jurisdiction is matter of great importance and one which ought to have been discussed with him. This is a factor which points to the need for the Respondent to be involved in important matters relevant to the children. The Respondent should have an input in the major activities directly related to their upbringing. He ought to be permitted to play an integral role in their development in a wide a spectrum of situations as is reasonably possible. It is crucial that he becomes a party to the essential policies and decisions in the general upbringing of these children and that he be given a right to exercise certain parental responsibilities in their evolution. No compelling reasons have been advanced by the Petitioner to demonstrate that the welfare of the children would be best promoted by her being appointed exclusive custodian of the infants. In my opinion, the Respondent should be involved in all important decisions affecting the upbringing of the children, as is reasonably practicable. The Petitioner and the Respondent are therefore awarded joint custody of the children. However, the Petitioner is granted the right to have care and control of them. -------------------------------------------------------------------------------- Page 8 8 Since care and control of the children now reside with the Petitioner, provision must be made for the respondent to have access to them. They ought to spend some time each year with the Respondent in Jamaica. During the summer vacation, they should spend two weeks annually with the respondent as well as one half of the Christmas holidays each year and Christmas day each alternate year. They live in the Bahamas, they are very young. They will not be able to travel on their own. They should be accompanied by a chaperone, who should remain with them and supervise them while on their visit to Jamaica, until the year 2004.The Respondent should pay the cost of the children's airfare as well as one half of their chaperone's airfare. On each occasion on which the Respondent visits Nassau, he should have access to the children at a time and place to be agreed on by the parties, provided the respondent gives to the Petitioner at least one week's notice of his desire to see the children. Costs of the application is granted to the Petitioner. ============================================================================= As you can see, it is not that simple and it is quite possible that custody could be awarded to the father David Ingram's US/Canada Services US / Canada / Mexico tax and working Visa Specialists US / Canada Real Estate Specialists 4466 Prospect Road North Vancouver, BC, CANADA, V7N 3L7 Calls accepted from 10 AM to 10 PM 7 days a week Res (604) 980-3578 Cell (604) 657-8451 Bus (604) 980-0321 [email protected] www.centa.com www.david-ingram.com Disclaimer: This question has been answered without detailed information or consultation and is to be regarded only as general comment. Nothing in this message is or should be construed as advice in any particular circumstances. No contract exists between the reader & the author and any and all non-contractual duties are expressly denied. All readers should obtain formal advice from a competent financial, or real estate planner or advisor & appropriately qualified legal practitioner, tax or immigration specialist in connection with personal or business affairs such as at www.centa.com. If you forward this message, this disclaimer must be included." This from ask an income tax immigration planning and bankruptcy expert consultant guru or preparer from www.centa.com or www.jurock.com or www.featureweb.com. 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David Ingram of the CEN-TA REALTY Group US / Canada / Mexico tax and working Visa Specialists US / Canada Real Estate Specialists 4466 Prospect Road North Vancouver, BC, CANADA, V7N 3L7 (604) 980-0321 - Fax 913-9123 [email protected] www.centa.com www.david-ingram.com ---------------------- multipart/alternative attachment An HTML attachment was scrubbed... URL: http://www.centa.com/CEN-TAPEDE/centapede/attachments/c7cd37a2/attachment.htm ---------------------- multipart/alternative attachment--
