DEAR MRS MACAULAY,
In January of this year my brother took his son from his maternal grandmother. The child's mother died about two years ago and he didn't want to be harsh before that and just remove the child from her care. The maternal grandmother consented to my brother taking his son to live with him. My brother works overseas and so the child was placed to live with my mom and myself. After my brother went back to work the maternal grandmother took out a summons and served it on my mother. The judge overruled the father's decision and placed the child back with the maternal grandmother. The matter is still in the courts; however, at the last court hearing the judge stated that she cannot appoint either grandmother as guardian because the father is the surviving parent.
How can my brother give legal guardianship to our mother?
It seems to me astounding that from what you have stated, a judge removed a child from the surviving parent's custody, care and control. It is astonishing because from what you say the surviving father acted properly and with sensitivity. You say he did not assume custody of his child immediately following the death of the mother and so the child was in his maternal grandmother's care and control for two years. You also say that when he decided to assume his full role as surviving father, he obtained the maternal grandmother's consent to take his child into his custody, care and control. All this seems to me to be evidence of the fact that he had not only his child's best interests in mind, but also the maternal grandmother's. Clearly, he is a thoughtful and responsible father.
He did not just act on his legal entitlement when the mother of his child died, but waited for time to soften the pain of loss in the child and maternal grandmother. He then made the sensible decision of having the care and control of the child placed in the hands of his mother, and you the aunt as his sister. From what you stated he did this as he had to return to his work abroad and he clearly would need time to make the proper arrangements for his child.
One mistake or slip he made was that he did not take the precaution of applying to the court to formalise his legal entitlement to custody of his child. This entitlement gives him the right to make all important decisions about his child's welfare and development, which includes with whom and where his child should reside and who should be the de facto guardian of his child.
The maternal grandmother's application to the court overrode the father's legal rights by, in effect, nullifying those rights and taking the child away from the people the father had given the responsibility to care for his child. The first question you should have asked is how can the father formalise his legal right to have custody of his child and be able, without interference, to exercise all the rights of a father with legal custody.
My answer to this question is that he must, and I repeat, must, apply to the Family Court in the parish where he resides when he is in Jamaica for custody, care and control of his child. As part of these proceedings, he must apply to the court for his mother, with or without you joined with her, to have care and control of his child, until he can have the child with him totally. Once these orders are obtained by him, he can appoint your mother as the child's legal guardian by a Deed of Appointment if he really wants to go that way.
Be assured that your brother, having his custody rights made formal in an order of the court, would then have the right to decide where and with whom his child should live and he can ensure that the relationship between the child and the maternal grandmother continues by arranging regular visits between them.
You say the matter is still in the court — that is the maternal grandmother's application. But was a continuation date fixed by the judge and what was the stated purpose for adjourning the matter with the decision having been made and stated that neither grandmother can be appointed as the child's guardian? As I recall, the Family Court does not have the jurisdiction to make such an appointment anyway. You did not say what the maternal grandmother applied for. Was it for custody, care and control?
Anyway, your brother must take the proactive step of making a counter application for custody to him and care and control to you mother and to you (I would suggest), and his affidavit in support of his application must state clearly the agreement of the maternal grandmother when he went for his child and explain the reason why he had left his child with her on a temporary basis until the pain of their loss had dissipated a bit. He can ask for his application to be heard with the maternal grandmother's if there is still anything left on her application to be decided.
Please assist your brother to make his application so that he can be in his full legal position as father and thus able to exercise all that the law entitles him to do vis-vis his child. He is the one entitled in law — not either of the grandmothers. They can have access to their grandchild through his decisions or by a considered order of a court.
You can go to the Family Court and ask the clerk of courts to explain how your brother can make his application while he is abroad, or obtain the services of a lawyer to advise you all and assist with making, filing and ensuring service of his application. Find and choose a lawyer who is very good and experienced in matters of this kind in the Family Court.
All the best wishes to you all, and especially to the child.
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.