Sun | Jan 21, 2018

Immigration Corner | Can my son be taken from me?

Published:Tuesday | November 1, 2016 | 12:00 AM

Dear Mrs Walker-Huntington,

I am a Jamaican female living in Jamaica. My son who is five years old and has been living with me from birth, has been filed for, without my consent, to live in America. It was just two weeks ago that I was informed that he was and that he should leave the country in a few days. I have refused to send him.

I am now anticipating the fall-out of my decision. Can his father forcefully take him from me? Do they need my consent to take him out of the country? Can immigration take him? In case any of this is possible, what should I do?

- SA

Dear SA,

This is truly an unfortunate situation, but you are within a group of parents in Jamaica who are faced with this decision. You have not indicated who filed the petition for your son to live in America.

It could be that his father was filed for by one of his parents or his siblings and your son would be deemed a derivative beneficiary. Or maybe your son's father married a US citizen who filed petitions for himself and his son.

In order for your son to have been petitioned for by a relative, at a minimum they would have needed his birth certificate, his Jamaican passport and photographs. To have done all of this without your knowledge and/or consent is decidedly unscrupulous.

You also didn't indicate what the legal relationship is or was between yourself and your son's father - i.e., whether you were ever married, are now divorced and whether there was any determination of custody. If the child has been living with you since birth, it is hard to see a judge changing custody of the child just to allow him to live in America; and also, the deceitful manner in which the process was handled would not bode well for the father.

If you send your child to America, you could end up in the category of parents whose children are living overseas and they have no contact with the children.

Also, once the child is in America it will become far more difficult and expensive to engage in a custody battle across legal jurisdictions to have your child returned to Jamaica.

To be clear, US immigration cannot take your child away from you and force him to migrate.

Whether or not you have had a determination of custody, please seek the advice of a Jamaican-licensed attorney who practices family law. You should also ensure that you or your attorney has possession of your child's passport.

• Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida.