Dear Mrs Macaulay,
I would like to apply for legal guardianship for my grand-nephews, ages 12 and 10. Both parents are alive and are willing for me to take this position. About 12 years ago I was successful in applying for legal guardianship for my niece when she was 11 years old. She has since graduated from college and is now working. At the time my sister was not able to take care of my niece and that is why I got legal guardianship. This is the same reason why I now want to be legally responsible for my two grand-nephews. Their mother (another niece of mine) and their father are not able to care for them. It appears, however, that the process has changed, because when I first did the guardianship application I did not need a lawyer (I did it on my own). Is it the case that I now have to consult a lawyer, and if so, is there a cost?
I note from your letter that you only refer to guardianship of your grand-nephews and you have not indicated in any way whether with your niece you also had custody, care and control of her. You have also not stated whether you wish with your grand-nephews to only have guardianship without custody, care and control of them.
I do know that applications for guardianship by persons other than a parent of a child ought to be made to the Supreme Court of Judicature and not to a Family Court. The fact that you made your earlier application in person suggests to me that it was in the Family Court and so you also applied for custody, care and control. I also seem to remember that there was a time when guardianship orders for non-parents were incorrectly made in the Family Court.
You do need an attorney to assist you with the application, to ensure that you meet the procedural requirements and submit the required facts to ground it for a successful conclusion. The parents would also need to file their affidavit in answer to your application and indicate therein their understanding and full agreement for you to have full legal and actual control and responsibility for your grand-nephews.
You would need to pay the lawyer's fee for preparing, filing, giving advice for, or effecting service on the parents, and attending one or two hearings. They will also draw up the order and ensure that it is signed by the judge in the days after it is made and filed and stamped in the Registry. You may be lucky to find a lawyer who would do it for you pro bono (free). There is a Legal Aid Clinic on Tower Street in Kingston and also at the Norman Manley Law School in St Andrew. You may wish to check these out before you commit to a lawyer in private practice.
I hope you are aware that if you apply for and obtain legal custody of your grand-nephews, with or without a care and control order, you will have the legal right to make all decisions for their upbringing, welfare and overall development. A care and control order will enable you to have them live with you while you take care of them.
I hope I have cleared up the matter for you and that you proceed and can fully assist these children to have bright futures as you did for your niece. Good luck.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.