Dear Mrs Macaulay,

I have been raising my late partner’s child since she was three months old. She recently turned 15 years old. Ever since her father died I have been asking the mother to let me adopt her, as the mom has not supported the child in any way from day one. I don’t wish to hide the child from her as I allow her to have access, but she has not made any effort to be a part of the child’s life. There are opportunities that I can only grant this child if I have some form of legality. I am currently in the United States and about to start the filing process for my other kids, and I know this will affect the child greatly if they are separated. The mother refuses to let me adopt or give me guardianship rights. I have all evidence to show that I have been supporting this child from three months old, to date. Even when the child’s father died, the mother did not reach out to the child or visit to offer any support. Is there a way this could work out in my favour where I could be granted legal guardianship or adoption by default if there is such a thing?

There are legal provisions which enable you to apply to the court for orders that would allow you to add your stepdaughter to the filing processes you are about to undertake for your children. You can start in the circumstances you have related, that you have been raising her all her life. You could have applied for sole legal custody and care and control and also legal guardianship of her years ago, and you can also do so now. This you could have done under the Children (Guardianship and Custody) Act and this is the Act you should now use as quickly as you can to obtain the services of a lawyer to prepare your Supreme Court application, before she’s 18.

In the Supreme Court you can apply for both sole legal custody (which when granted would give you all legal rights and obligations to make all decisions relating to the child’s life and development). You should also apply for the legal order giving you care and control of and over the child. This order would give you the legal right to have her live with you and your family, and to determine the daily life pattern of the child, and for you to take care of all her daily needs

You have, from what you say, been doing all I have stated above from three months after her birth up to the present time, and you wish to also apply for her to join your own children, with whom she has grown with, with you in the United States . As you plan to also file for her, when you obtain the orders of sole legal custody and care and control, if you also apply for an order appointing you as her sole legal guardian, this would make it abundantly clear to the US immigration authorities that you have the sole legal rights and control over and obligations for her.

I have no doubt that you will succeed in your application for the orders I have suggested. You must, however, move quickly and have your application filed as she is 15 years old. In addition to your application and your affidavit in support of it, which must have all your documentary evidence attached as exhibits, you must also attach a certified copy of the child’s birth certificate and also a certified copy of her father’s death certificate. Your affidavit must relate all the facts of her parentage, what relationship each parent had or have with her, and whether in your view the biological mother is a fit and proper person to have custody and care and control. From your letter, you would clearly say she is not a fit person at all, and so you must give all the facts and reasons why you say this, all despite the fact that you afforded to her access to her child.

Your application must then be that you are applying for sole legal custody and care and control, and for you to be appointed her sole legal guardian, and it must be supported by your affidavit in support and an affidavit of urgency, which you must also do in support of your application.

If you have any other person who knew and knows the role you have played in your stepdaughter’s life and the provisions you have made and are making for her general care, you should inform the lawyer you have retained to deal with your application, to also prepare their affidavit in support of your application.

Your lawyer must also prepare the affidavit of urgency to ensure that you obtain an early hearing date and which must clearly state the reason for urgency — the main one being that the child is now 15 years of age. You must state why you did not make the application before now, and are only making it now. It must make clear your plans for filing for your children, including your stepdaughter, who has only ever had you caring for her, and that she grew up with your children, and that since her father has died, she has no other caring family save for you and your children. The lack of interest of the biological mother throughout the years and even after the father’s death, should also be noted. In other words, you must state that your stepdaughter only has you and your family as her family.

Your lawyer should consider whether to also add an application for an order under the same Children (Guardianship and Custody)Act, that as the mother abandoned and/or deserted her child and allowed her to be brought up by you and at your expense, that the court find that the mother was completely ‘unmindful’ of her parental duties and that having regard to the child’s welfare and her best interests, the mother is not a fit person to have custody, and therefore you as the truly fit person must have sole legal custody, care and control, and should be appointed as the sole legal guardian.

There is also provision in the same Act for the court to order that the parent, in certain circumstances, has to repay to you the entire sums you have spent on bringing up the child, as deemed just and reasonable.

I hope that I have made the position clear to you as in my opinion you clearly have everything in your favour to obtain the orders I have suggested upon your application having been filed and heard in the Supreme Court. Please do not delay any further.

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. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

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.