All Woman

Is full custody different from sole custody?

By Margarette MACAULAY

Monday, March 21, 2011    

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Dear Mrs Macaulay,

I want to know the difference, if there is any, between full custody and sole custody. I ask this question because I am a single mother who legally resides in the USA (green card holder). I have a child who is 12; this child resides in the USA with me and is a US citizen by birth. When the child and I lived in Jamaica, the father and I supported the child. For the last four years I have been the sole breadwinner for this child. There has been little verbal contact over the years between the biological father and us. With the biological father not around, if I should die I would want one of my family members to be legal guardian of my child, and to govern whatever estate that should be left for him. The other question is, being that I reside in the USA and the father lives in Jamaica, in which country would I file for full custody or sole custody?

Thank you for your letter relating to the legal custody of your child and the appointment of a guardian and trustee for the child and his affairs in the event of your untimely death.

"Sole" custody and "full" custody are one and the same. They both mean that one parent or another person has been granted the legal right to solely make all decisions pertaining to the upbringing, development and life of the child who is the subject of the order. A person may have custody but the child does not live with that person. The right to have the child live with one is called having care and control.

Generally the term "full" is not used as it is not necessary to qualify an order granting custody in this way. If a single person is awarded custody, they have "sole" custody and are the sole custodian of the child with all the rights and obligations of such a position. You now have defacto custody and care and control. When you get sole custody, you will have legal custody and care and control of your child.

If custody is granted to two persons, then they have "joint" custody, as opposed to "sole" custody granted to a single person.

Since you and your child, a US citizen, reside in the United States, in my opinion you ought to apply for custody of him there, but you must ensure that the application and your affidavit in support is served on the father here and that the service is proved by an Affidavit of Service, duly sworn by the process server here.

Service of Court processes filed in United States courts are generally served here through the services of a Jamaican attorney-at-law who will have a process server effect the service and then draw up the affidavit and have this person duly swear to the affidavit of service before a notary public and then send it back to your attorney there.

I see no difficulty ahead of you and you should have no trouble in obtaining your order for sole custody of your child.

I trust that I have now settled your mind about the issue of custody and that you will proceed to do what you need to do to secure by the best means that you can, a secure and safe future for your child. It is clear that his father seems to have lost interest I him. I would however advise you not to give up trying to ensure that he does have a relationship with him - the father had one before and may be having some difficulties. In any event when he is served with your application for sole custody, care and control, he probably would apply for access to his child. Do not let this deter you from making your application, however.

Regarding, the appointment of a guardian and also a trustee, yes, you have the legal right to do this. You can do the appointments of both in the same person or have one as guardian and another as the trustee who would take care of any property (real and/or personal) which you leave for your child in his best interest and for his care and maintenance.

You can do the appointment in a Deed of Appointment of Guardian and Trustee or you can do it in your Last Will and Testament. By the first means, it would say therein that in the event of your death while your child is still a minor, you are appointing so and so as his guardian and that the person shall have legal custody and care and control of the child. Then in a separate paragraph, you deal with the appointment of the person or another as the trustee to deal with, handle and expend funds for his benefit from whatever properties you leave for him by your Last Will and Testament.

In both appointments of guardian and trustee, you will say up to what age the appointment would last for the care of your child.

There it is, good luck.

Margarette May Macaulay is an attorney-at-law and a 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. We regret we cannot provide personal responses.

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