Sherry-Ann McGregor, Contributor

MCGREGOR

Custody battles are notoriously bitter, and the victory of one party is invariably a pyrrhic one - "you win the battle, yet you lose the war." The result may mean the exclusion of one parent from the life of the child, who is invariably not able to share a close bond with one parent. This may cause eventual psychological harm to that child so, the successful party still has to be careful to safeguard the child's psychological well-being.

The recent Court of Appeal decision in the case involving David Panton and Lisa Hanna received much publicity, mainly because of the popularity of the parties. In this article, we will consider one of the legal issues which arose in the case, i.e., whether the Jamaican court had the power to refuse to hear a custody case involving Jamaican nationals, in favour of allowing that issue to be determined by a foreign court.

The facts

The relevant facts are that the couple were married in 1999 and the union produced one child, who was born in 2001. They emigrated to live in Atlanta, Georgia in February 2004 and were divorced in June of that year in the Superior Court of Fulton County, Georgia. The final decree of divorce included a consent order granting joint legal custody to the parties, with primary physical control to the father.

Returned to Jamaica

Hannah returned to live in Jamaica, while Panton and the child continued to reside in Atlanta. In December 2005, the child came to Jamaica to visit with Hanna, who refused to allow him to return to Atlanta with Panton when he came to take him home, in January 2006. In fact, Hanna obtained an ex parte order from our local Supreme Court granting her custody, care and control of the child, as well as an injunction to restrain Panton from removing him from Jamaica.

The court actions

Panton applied to the Supreme Court to discharge the injunction and to obtain an order for the return of the child to Atlanta for the custody issues and all disputed facts to be determined by the court there. The ruling was in Panton's favour, the injunction was discharged and it was ordered that the child be returned to Atlanta. Hanna appealed that order and also got a stay of execution, which allowed her to keep the child in Jamaica pending the hearing of the appeal.

Eighteen grounds of appeal were argued before the Court of Appeal and all three judges of appeal agreed that the Jamaican court could accede to the jurisdiction of a foreign court, and return the child to that jurisdiction without hearing the application for custody. In so ruling, the court accepted that the Atlanta court was better suited to determine the legal questions regarding the welfare of the child. This was based on a finding that the child had closer connections to Atlanta, than to Jamaica.

Atlanta resident

The court accepted the fact that the child had been resident in Atlanta from February 2004 and continued to do so after the couple's divorce, and attended school and church there. It also held that, although the custody order in Atlanta was not binding on our local court, its existence had to be duly considered. It further accepted that the child's place of residence had not changed simply because he had been retained in Jamaica by Hanna.

This decision confirms that a foreign court may, depending on the facts of the case, be better suited to hear a custody application in respect of a child despite the fact that the parents and the child are Jamaicans. Once such a finding is made, the Jamaican court will not be required to consider the disputed facts on an application for custody filed in such a matter.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.