Dear Mrs Macaulay,
My husband's three-year-old daughter resides in Jamaica. Her father is a permanent resident in Canada now and we are looking for information on what we can do to get custody or to sign guardianship to my husband's stepmother in Jamaica.
The child's mother left for America when she was a few weeks old and my husband has been caring for her, financially providing for her, and had his stepmother raising her for now. Her mother has since been deported back to Jamaica and has taken the girl, but is not physically fit to care for her and is currently not working to provide food and clothes for her.
What can my husband do here in Canada to get his daughter back living with his stepmother and father in Jamaica?
I understand from your letter that your husband, before your marriage and while he was still residing in Jamaica, was left with the responsibility of the care and control of his infant daughter. I also understand that your husband sought and obtained his stepmother's help to take care of his child and he also provided for all her financial and material needs. I further understand that when your husband left for Canada and during his residence there, he ensured that his stepmother continued with the care and control of his daughter and continued to fully provide for her material needs. I also assume that he kept in contact with his daughter through the available communication methods, so that their relationship would continue.
You say that though the biological mother is unfit, that she removed the child from the stepmother's care and control, which the father had established. I do not really understand what you mean by 'physically unfit'. You also say that she is unemployed and so cannot provide even food and clothing for the child.
Your legal options
Your husband cannot make an application to the Canadian courts but he can have an application filed in the court here, on his behalf, for sole custody to be granted to him, and the care and control of his daughter to be granted to his stepmother and his father. The grounds of the application would, inter alia, be that it is in the best interests of the child for these orders to be made, as the mother abandoned the child by leaving her while she was only a few weeks old, without making any arrangements for her care. Also, that was only after she was deported and was therefore forced to return here, that she decided to grab her child from her settled home in which she had been properly cared for, which underlines her selfishness and lack of interest in what is best for her child.
Additionally he should state that she, though being unemployed and unable to provide in any way for her child (and possibly herself), still went and removed and kept the child from her safe and nurturing environment.
It must also be asserted that she is also physically unfit (which must be explained fully) and so cannot adequately or properly provide the standard of care necessary to protect the child from harm and to ensure her proper development. Whatever renders her physically unfit and which may make her unfit in other ways to care for her child must be disclosed in affidavits to the court in support of the application..
Your husband and his parents, should support the application with their affidavits of the full relevant facts of the abandonment of the child, the care and control provided for her over the years, what happened when the mother went and took the child, and their concern about the welfare of the child as these are facts upon which they would rely to show that the best interests of the child can only be served by her being returned to their stable and safe home which she has always known with your parents and not with the uncertain circumstances in which she now is with her unreliable biological mother who may abandon her again for her own self interest and without a backward glance.
Your husband should make every effort to attend court with his parents on the day of the actual hearing of the matter, as he would be the applicant. I see no reason why they should encounter any difficulty in obtaining the orders for his custody and for his parents to continue to have care and control of his daughter, as long as he moves quickly to make the application.
The biological mother should be granted access to her daughter at such times and in such circumstances as are considered to be in the best interests of this child. It should be ensured that an order for a social enquiry report to be obtained as early in the proceedings as possible. This would inform the court about the grandparents' characters and reputations and their standard of care of their grandchild and also about their home. It would also cover the character, reputation, home facilities and arrangements for the child's care being provided by her biological mother and what provision both your husband as the father and she as the mother are making for the child. The report will also contain recommendations about who, in the opinion of the officer who did the investigations and assessments and prepared the report, will better ensure and protect the child's best interests and general welfare.
I therefore suggest that your husband arranges with his parents for them, as they are here in Jamaica, to assist him to find and retain the services of an attorney as quickly as possible to prepare and file the application for an order for him to have sole legal custody of his child; and for an order that his parents have care and control of his daughter and an order for the mother to have access to her daughter as the court determines would be in the child's best interests.
I must just add this caution: even if the mother takes the child back to your husband's parents, he must still proceed with the application for sole custody, care and control to his parents, so that the mother cannot, at some other time in the future, go and remove her from their care and control. I assume that at some point your husband may wish to have his child with him and you. If so, he must act to protect the child and he must remember that in law, he has just as much right as the mother to have custody, care and control of his child but he must have a legal order to defend that right against all others, including the mother, and with such legal orders as I have suggested, and with proper care being provided for his child by his parents, any attempt of the mother to overturn such orders would fail.
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 allwoman@jamaicaobserver. com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.
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.