DEAR MRS MACAULAY, I have full legal custody of my two children, and their father has visitation. He has never been a solid influence in their lives, and in fact, hardly even comes to get them when he’s supposed to. I’ve been hearing a lot about writing wills, and I wonder if I could write my will to state that if anything should happen to me, my kids would go to my sister, instead of to their father. Would the father automatically get custody, even though he is unfit? Would a will supercede this, if so?

I understand your concern, as though their father has access to the children, you say he is selfish, unreliable, untrustworthy and unfit.

Let me make it clear at the onset, that no surviving parent, following the death of the legal custodial parent, can automatically have custody. The Children (Guardianship and Custody) Act provides in its sections 3, 4 and 5, remedies for such situations and for the appointment of legal guardians of children by both or either parent.

Section 3 (1) & (2) make it clear that the surviving parent shall be the guardian of the children either alone or jointly with an appointed guardian or guardians, but that this is subject to the provisions of the Act. Part of these provisions are that such an appointed guardian can apply to the court to object to the surviving parent being guardian on the ground that they are unfit. The court would also consider making an order for the parent to have access to the children.

The Act also provides in Section 4 (1) & (2) that either parent may by a deed or by their will appoint any person to be the guardian of their child or children after their death or incapacity, as you are thinking of doing. You should therefore retain the services of a good family/children’s law attorney-at-law to assist you to prepare your appointment of your sister as your children’s sole legal guardian and legal custodian, and for her to have care and control of them. Your sister must be clearly identified by her correct names and her occupation, address, and all and any required detail must be stated in your appointing deed or will.

I usually suggest that mothers in your position appoint their guardian by a deed of appointment of guardian, and also make your last will and testament and in that refer to the fact that you have appointed a guardian for your children by a deed (which is stamped and recorded stating the date and number). The usual will be that the appointed guardian acts jointly with the survivor parent, but remember, subject to the provisions of the Act!

In this way you make assurances doubly sure, because once you have a clear appointment of your sister as such an appointed guardian, if the father wants to push for his position as the children’s father, or even if he does not push, she has the authority to apply to the Family or Supreme Court for orders to prevent him from getting custody.

I hope your sister is strong-willed and confident because she will bear the burden of making sure to keep this man away from being a joint legal guardian and custodian of his children jointly with her.

So note, not only can you appoint your sister as the legal guardian of your children, but the Act which deals with guardianships of children, among other things, gives you the legal authority to do so by a deed and /or your will.

So please go ahead and have your lawyer prepare the deed of appointment of a guardian for both children, and also your will and including the same in it.

All the very best.

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