DEAR MRS MACAULAY,
My two grandchildren have been with me since 2009 when their mother died, as their father resided abroad. I lost contact with him in May 2014. I finally made contact in June 2018. There had been no support over this period. Both children are citizens of the USA. The father is a permanent resident, as was their mother.
The children's passports have expired since May 2018 so they are stuck here. Can I apply for custody, since I have no idea where the father is? Or what course of action can I take? The children are 14 and 12.
You have been the sole caregiver of your grandchildren for 10 years. In fact, you have been their mother and father from their formative years while their father did nothing except leave them in your de facto custody and care.
He has in fact abandoned them. You did not state what he did, if anything, when you succeeded in making contact with him in June 2018. Did he see his children and spend time with them? Did he discuss any plans for their future with you and what his hopes were for them generally? Did he explain the reason for his disappearance from their lives for nine years?
If you were not around to take charge of and care for the children, they would probably have been in state care and custody! This would not have been in their best interests.
You certainly can, and should apply for orders for the custody, care and control of your grandchildren and do so promptly pursuant to the Children (Guardianship and Custody) Act. You can do so even though you do not know where their father is. This would entitle you to make certain decisions on their behalf, like apply for a passport.
You must have your application filed with your affidavit in support, in which you would have detailed how the children came into your care initially, and how they were left in your care. Also state when, if at all, the father had any contact with them and you. The fact that he has never provided any maintenance sums for their expenses in all the years since 2009 to date is crucial. You must also state the fact that on the one occasion you managed to have contact with him in June 2018, he failed and neglected to maintain this contact. You must also have prepared and filed with your application for custody, care and control — in the Supreme Court, by the way — an application for orders for substituted service. This would mean that personal service would be dispensed with, and service would be effected by way of advertisements in a popular daily newspaper, and/or by service upon a family member of his who is most likely to be in a position to get the information to him of the application, or the application itself. Both your applications should end with a closing application that the court grants you, “such other orders and/or relief which the court deems appropriate or necessary in the circumstances”. Your application for substituted service should be supported by your affidavit, which will detail the fact of the father's abandonment of his children in your care from 2009 to date. You must also state and identify his family member or members who you believe, and why, are more likely to be the ones to have contact with him, or who he will contact.
You must therefore try to retain the services of a lawyer as quickly as you can. You have more than sufficient grounds to apply for and obtain orders for the custody, care and control of your grandchildren, on the grounds of their father's abandonment and that it is in their best interests. In addition, the court must act in their best interests to ensure their safety, security and continuing care and development.
I also advise you to have your lawyer add a claim for an order that the father pays to you, or in case you are not around to collect, to the eldest child, or that he pays into the court (Administrator General) in trust for the children a stated annual maintenance sum from 2009 when you commenced caring for your grandchildren, up to the attainment of their undergraduate degrees or when they each attain the age of 23 years, whichever soonest occurs, with interest at a particular percentage for each year the sums remain due. This application can also be made under the Children (Guardianship and Custody) Act because of his failure to provide any support for his children and leaving you to step in and provide for them in every way. You must make sure that your lawyer gives you at least three certified copies of the court orders so that if you do succeed in making contact with him again, you can hand him a copy and have him sign and date his receipt of it on your copy. Point out to him his obligation to make the annual payments due from 2009 and that he must clear these and continue to do so, so that his children can have their due.
So please retain the services of a good family law lawyer and proceed as soon as you can with your applications.
I wish you and your grandchildren all the very best, and every success.
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.