DEAR MRS MACAULAY,
It is my intention to have my parental rights to my daughter terminated and given to my mother. My daughter was born and resides in Jamaica. Please advise how I would proceed to have my rights terminated. Will I need a lawyer? I believe I am emotionally unfit to care for my daughter. Is there any other legal option I can pursue, rather than terminating my rights?
I understand that you are of the view that you are not emotionally able to take care of your daughter, and it is therefore in her best interests for your mother to have control and to take care of her.
You have asked how you can proceed to have your parental rights terminated and whether there are any other legal options which you can pursue other than terminating your rights. The answer to the latter is yes, there are other options.
But first, the question will come up, and must be dealt with, about who and where is the other parent. You see, if you are unable and cannot care for your child, the first person who has the right to the custody of and the obligation to take care of that child is the other parent. Whatever option you choose, you must explain why the father is not being considered by you — whether you approached him and he also cannot care for your daughter; or he abandoned you during your pregnancy and you do not know here he is; or that you are not sure who the father is and all the possibles went on their ways whilst you were pregnant and you have no idea how or where to find them.
Let me now deal with the options that you can consider to ensure that your daughter ends up with your mother, her grandmother. I trust that you have already spoken with your mother about it and she has agreed to assume the responsibility for your daughter. The options I am going to suggest will mean that your mother will have to have the applications made in her name and you will be the respondent. A lawyer would be necessary for the application made in the Supreme Court and the necessary documents must be prepared by the lawyer. Another option may be done in the Family Court, which I will also explain, and there a clerk of court will assist you and your mother to prepare and file the necessary documents.
I shall deal with the Supreme Court application first. The lawyer will prepare the application for your mother, for the custody, care and control of your daughter to be granted to her, on the grounds that you are completely unable to take care of her. Details of why this is so must be given in her affidavit in support of the application. If there is a medical report about your lack of the emotional stability needed to care for a child, a copy of this should be attached to the affidavit as an exhibit. A copy of your daughter's certified birth certificate must also be attached as an exhibit to the affidavit. The affidavit must also detail the situation of the other parent, and why he is not a party and not considered as the person to step in. Her affidavit must also state that she has agreed to take care to her granddaughter and details of the arrangements for upbringing of the child must be included in the affidavit, like the facilities for her shelter and who else resides there, the provisions of financial support for the care and necessities of the child, her schooling and religious practice, and details relating to the child's general health and any particular conditions she may be suffering from, for example, asthma.
You, as the respondent, must answer the claim, by filling in the Acknowledgement of Service after the application and affidavit in support is served on you, and in it you must answer clearly the question of whether you are defending the claim. I would suggest that your own affidavit is done, explaining your circumstances and position, and why you cannot defend your mother's application for custody, care and control of your daughter and that it is in the best interests of your daughter that she has custody, care and control. You should try to attend the hearing of the application, which will be heard in a judge's chambers.
In my opinion this is the best route to go. These applications for a grandparent to have custody, care and control must be done in the Supreme Court which has the jurisdiction to deal with them. By this means, with your mother granted custody by the court, she will have all the legal authority to make all the necessary decisions for her upbringing. And your parental right to custody can be reinstated by you making such an application yourself, if your mother's circumstances and yours change. Your mother having custody, care and control is not like in an adoption, which extinguishes your parental rights, as these become vested in the adopters of a child.
The option for an application in the Family Court would be only for your mother to have care and control of your daughter. This means that your daughter would live with your mother, but she would not have the legal authority to make all the important decisions about her granddaughter's upbringing, but would have to refer to you to make such decisions, some of which may need to be made very urgently. I really do not think this is a good idea.
Then there is the adoption option, which can be proceeded with, if your mother is not too old in the view of the Adoption Board to be approved to adopt her granddaughter. This is the only option which would terminate not only your parental rights, but also your designation as the parent of your daughter. Your mother would become the parent of the child in every way, including the adoption of her name.
I really think that you and your mother should move with the Supreme Court application, and as soon as you can. The sooner your daughter is settled in with your mother with custody, care and control, is the best way to ensure that her best interests are secured. There is also the question of how soon a hearing date can be fixed.
You can arrange for your mother to have care and control of your daughter now, so that the child becomes settled in with her grandmother, which will be good for her emotionally and developmentally to be in a secure and settled, caring home, while the legal processes are being pursued in the Supreme Court.
Please act by retaining the services of a lawyer to act for your mother first, and then you can deal with your position, whether you will get your own lawyer or act on your own behalf. This you can do, as your answer to the claim is not difficult to do and file in the Supreme Court.
All best wishes to you all.
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 email@example.com; 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.