Re Carlson

• Jurisdiction: Cayman Islands
• Judge: (Douglas, Ag. J.)
• Judgment Date: 02 May 2000
• Date: 02 May 2000
• Court: Grand Court (Cayman Islands)

Grand Court

(Douglas, Ag. J.)

IN THE MATTER OF CARLSON

Mrs. A.R.M. Hernandez for the plaintiff;

S.A. Roy for the defendant.

Cases cited:

(1) Dipper v. Dipper, [1981] Fam. 31; [1980] 2 All E.R. 722; (1980), 1 FLR 286, applied.

(2) Jussa v. Jussa, [1972] 1 W.L.R. 881; [1972] 2 All E.R. 600; (1972), 116 Sol. Jo. 219, applied.

Legislation construed:

Guardianship and Custody of Children Law (1996 Revision) (Laws of the Cayman Islands, cap. 65, revised 1996), s.7(1): The relevant terms of this sub-section are set out at page 140, lines 37–45.

s.7(3): The relevant terms of this sub-section are set out at page 141, lines 2–7.

Guardianship of Minors Act 1971 (c.3), s.1, as amended: The relevant terms of this section are set out at page 141, lines 12–20.

Family Law-children-custody-child”s welfare paramount considera-tion-conduct and wishes of parents may be considered in determining child”s best interests

Family Law-children-custody-joint custody only if reasonable prospect of co-operation between parents-residence in different countries relevant

Family Law-children-custody-sole custody gives neither parent pre-emptiv--e right to make major decisions regarding child”s upbringing-parents to reach agreement, with recourse to court if necessary-parent with care and control in charge of day-to-day matters

The applicant applied for an order for sole custody, care and control of her daughter and for maintenance for the child.

The applicant, a Caymanian, had married the respondent, an American, and lived in the United States until their relationship broke down and the applicant returned to the Cayman Islands with their daughter, K, now aged 8 years. She commenced divorce proceedings in the United States and made the present application to the Grand Court as the court having jurisdiction to decide the issue of custody of K. The child was made a ward of the court until further order. The applicant was employed as an accountant at a Cayman school and the respondent was an engineer in the United States.

The applicant gave evidence that the respondent had in the past been violent both toward herself and, occasionally, K, particularly whilst under the influence of alcohol. Their relationship had deteriorated further following her return to the Cayman Islands, and although she wished the respondent to have a meaningful relationship with K, she believed that the respondent would refuse to co-operate with her on matters concerning K”s upbringing, making a joint custody order unworkable. She also feared that he would not return K to the Islands after access visits. The respondent had made no contribution to K”s maintenance since their arrival in the Islands.

The respondent sought an order for joint custody in order to prevent K from being removed from the jurisdiction, to protect his right of recourse to the court and to be involved in major decisions concerning K”s education, religious upbringing, medical and legal matters. He denied having been violent toward K and sought long periods of access to her in the United States during the school holidays. He acknowledged that he would in future have to contribute to her maintenance.

Held, awarding sole custody to the applicant:

(1) In making any decision involving custody of a child, the child”s own welfare was the first and paramount consideration, and the relative merits of the parents” claims to custody which were not founded on this principle were to be disregarded. However, in deciding what would be in the child”s best interests, the conduct and wishes of the parents would be taken into account. An order for joint custody should not be made unless there was a reasonable prospect that the parents would co-operate with each other, and the problem of their residing in different countries was to be borne in mind in this context. The grant of custody to one parent alone would not give that parent a pre-emptive right over the other in matters concerning the raising of the child, e.g. education and religion, but only control over minor day-to-day matters. If the parents could not reach agreement on more major issues, either could refer the matter to the court (page 141, lines 8–22; page 142, line 42 – page 143, line 19; page 143, lines 33–40; page 144, lines 24–34).

(2) Given the poor relationship and the geographical distance between the parties, an order for joint custody was inappropriate and impractical. It was to be hoped that they could agree on major decisions affecting K without recourse to the court. Her day-to-day welfare would remain within the applicant”s control. The wardship order already in place would prevent K”s removal from the jurisdiction by either parent whilst in force, and the provisions of the Child Abduction and Custody (Cayman Islands) Order 1997 would in any event give some protection against breach of the custody arrangements (page 142, lines 10–16; page 143, line 41 – page 144, line 16; page 144, lines 35–45).

(3) On the matter of access by the respondent, the court would have some regard to K”s wishes. Although she appeared to be rather intimidated by her

father and preferred the company of her mother and friends in Cayman, she also loved her father and it was important that she be allowed to have a relationship with him and with her paternal grandmother in the United States. She would therefore spend two-thirds of her summer holidays in the United States and other school holidays alternately with each parent. The respondent would pay the costs of these visits. He would also be ordered to pay $600 per month in maintenance and half of K”s educational and medical expenses (page 145, lines 2–41; page 146, lines 9–23).

DOUGLAS, Ag. J.: This application is by way of an originating
summons dated September 20th, 1999 and claims as follows:
‘1. That the plaintiff be granted custody, care and control of the
30	minor child Kristina Deanne, born October 3rd, 1991, until further
order of the court.
2. That the defendant be ordered to pay maintenance for the
minor child of the marriage in the amount of US$600 per month.’
The court is seised of this matter by virtue of the provisions of s.7(1) and
35	(3) of the Guardianship and Custody of Children Law (1996 Revision)
These provisions are as follows:
‘(1) The Court may, upon the application of the father or mother
of a child, make such order as it may think fit regarding the custody
of such child and the right of access thereto of either parent, having
40	regard to the welfare of the child and to the conduct of the parents,
and to the wishes as well of the mother as of the father, and may
alter, vary or discharge such order on the application of either parent
or

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