H-P v P

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 26 February 2001
• Court: Grand Court (Cayman Islands)
• Date: 26 February 2001

Grand Court

(Smellie, C.J.)

H-P

and

P

Mrs. E. Nervik for the petitioner;

The respondent appeared in person.

Cases cited:

(1) Hawkes v. Hawkes, Grand Ct., October 14th, 1997, Cause No. D3 of 1997, unreported.

(2) Nash v. Nash, [1973] 2 All E.R. 704, dicta of Davies, L.J. applied.

(3) Poel v. PoelWLR, [1970] 1 W.L.R. 1469; (1970), 114 Sol. Jo. 720, sub nom. P. (L.M.) (orse. E) v. P. (G.E.), [1970] 3 All E.R. 659, dicta of Sachs, L.J. applied.

Family Law-children-custody-removal from jurisdiction-sole custody granted and removal to Florida permitted if necessary to allow parent to pursue career, establish new home with extended family and achieve emotional clean break from spouse-if sole custody otherwise unopposed, wrong to force parent to remain here to keep custody

The petitioner applied for an order for sole custody, care and control of the parties” child.

The parties moved from Florida to the Cayman Islands shortly after their marriage, and their son (now aged seven) was born here. In divorce proceedings, the court made an interim order awarding the petitioner wife custody, care and control of the child. The husband, who was unem-ployed, had maintained regular access to him. Both parents were well able to care for him and aware of his special needs as a child with juvenile diabetes.

The wife did not have Caymanian status and wished to move back to Florida, where her family lived, to resume her career as a real estate agent, and to take the child with her. She alleged that ongoing tension caused by her husband”s ‘controlling’ behaviour was making life un-bearable for her. In Florida her son would attend a school comparable to the one he attended in the Cayman Islands, and would have immediate access to better medical facilities than were available here. When inter-viewed by social services he said that although he would prefer that both parents moved to Florida, he would rather live there with his mother and visit his father in the Cayman Islands than remain behind permanently with his father.

The husband, who had not opposed the interim order on the basis that the wife and child would be living nearby, objected to an order permitting his wife to take the child overseas.

Held, making the following order:

The wife would be awarded permanent custody, care and control of the child, permitting her to take him to Florida. The court was satisfied that the relationship between the parties was such that a clean break was desirable, emotionally and otherwise. Had the wife remained here, she would almost certainly have retained custody, care and control, and the court would not lightly interfere with the existing arrangements. It would

be a drastic thing to prevent her from pursuing her chosen career and require her to remain in the Cayman Islands in order to retain custody of her child. Her need to be near her own extended family, who were willing to help and support her in establishing a home in Florida, was a compelling factor in her favour. The court was satisfied that its order for continued access by the husband would be enforceable in Florida. Accordingly, the parties were to agree access arrangements, and a copy of the final order containing these arrangements was to be registered with the Florida courts (paras. 7–8; paras. 10–12; paras. 14–18).

1 SMELLIE, C.J.: I have before me an application for the resolution of ancillary matters. These relate to the custody, care and control of the child of the parties and to the division of matrimonial property. For reasons which...