Woman raising child from infancy wants guardianship
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DEAR MRS MACAULAY, I am having a problem. I have been taking care of a five year old child from she was two months old. The mother of the child is giving me a hard time regarding legal guardianship of the child. The mother doesn’t help with her at all. She only comes to look for her once or twice a year. Recently I asked her to give me legal guardianship of the child and she gives me excuses everyday as to why she can’t meet me at the family court.

Is there any other way that I can go about getting legal guardianship of the child without her?

You are and have been doing a wonderful thing for this child and I applaud you for all the attention and care that you have given the child. Let me go step by step regarding what you’ve asked.

You cannot obtain guardianship of the child without the mother being served with your application, but if she does not attend court on one or more dates, the judge can make the order in her absence, because of her default. That is to say, because of her failure to attend the court. However, for orders appointing persons as guardians of children, such applications should be done in the Supreme Court. In addition, I must tell you that being appointed the guardian of the child is not the best way to go for what I believe that you wish to have for this child you have been taking care of for so long. Your letter makes clear that you have had de facto, actual custody of the child for over five years; you just do not have legal custody.

I suggest that you go to the Family Court, with a certified copy of the child’s birth certificate, and tell the clerk in the court’s office that you wish to apply for sole legal custody and sole care and control of the child who has been in your custody and care for over five years. She will send you to see an intake officer, who will take all the facts from you and you will be informed when you should return to sign the application and your affidavit in support of it and to arrange for them to be served on the mother. You have not mentioned the father. If you know who he is and where he is, then you must tell the intake officer and he also would need to be served.

You see, the law requires that before a child is put in the legal custody of a person who is not the parent or is only one parent, in exclusion of the other parent’s right, then the parent against whom the application is made must be given the opportunity of appearing on the day of hearing to tell the court what their position is about the application. So the mother (as she is the only one you have referred to) must be served with your application plus affidavit) after you have signed them and they have been sealed with the court stamp. You can ask for the court bailiff to serve the documents for you or arrange with another process server to do so for you, if you can make contact with one. You can ask the officer who sees to the finalising of the documents and speaks to you about the service of them what is the best way for them to be served. You see, the person who serves them will need to return the court copies to the court with the facts about how they were served filled in the Affidavit of Service on the back, with their full name, address, occupation and the particulars and place, date and time of service. All of this must be done in sufficient time before the day of the hearing of your application in the court by the judge.

The mother will, in effect, be summoned to come to the court at a time and date for the hearing of your application for the sole legal custody and care and control of the child. The summons will state what may happen if she fails to attend. I suggest very strongly that you keep a photocopy of the application and your affidavit before they are served on her. This is just in case, when she is served, she decides to go to your home to demand her child, which she cannot do legally once the matter is before the court. You can call the police and show them the copy of your application with the date for the court hearing on it and then all they must in law tell her is that she must go to the court that day and tell the court her side.

I see no problem with you succeeding with the applications I have suggested above. All assistance in the Family Court is free of charge. I strongly advise you to go ahead with this application. It seems to me that the mother has abandoned her maternal obligations to her child and left her in yours, for you to not only physically and emotionally care for her child, but for you to also fully provide all necessities for the child, while she turns up once or twice a year to see the child. All you have done will accrue to your benefit and be to her detriment. So do not fear to act and please do so as soon as you can.

I assume that you have either the child’s original birth certificate or birth records form. If you do not have either, then I assume that you know the full name of the mother, her address at the time of the birth, and maybe her occupation at that time also. If so, then go to the registrar of births and deaths office in your area and apply for two certified copies of the child’s birth certificate. This you must take to the court to make your application.

Let me explain why I have suggested that you apply for sole legal custody and care and control of the child. The reason is that when you obtain the orders, you will, as the person with sole legal custody, have the legal right to make all decisions about the child’s upbringing, development, medical care, education, residence, religion and all those relating to her daily life. In having sole legal care and control of the child, you will also have the legal right and obligation to have the child in your care every day, that is to say, that she will legally live with you and no one can make her live with anyone else while the order exists and up to her 18th birthday.

I have not suggested that you apply for legal guardianship, firstly because of what I said above. But, secondly, the appointment of you as the child’s legal guardian without more does not give you the right to have care and control of her, so your application for guardianship must also be accompanied with those for sole legal custody and legal care and control. You see, a legal guardian is a person appointed by a court to have legal authority to make decisions for the ward or to take care of the personal and property interests of the ward — that is, the child/ward’s income, money or other property until the child attains her 18th birthday and things like that, and in circumstances when the child cannot care for themselves. I always take the precautions in applying for legal guardianship to also apply for legal custody and care and control, if the guardian is to have full legal authority to make all necessary decisions for the child’s life and development plus have the legal right and obligation to have the physical daily care of the child/ward and to have that child reside with the appointed guardian. Such an application for you must be made to the Supreme Court and whereas you may be able to do and complete your application for sole legal custody and sole legal care and control of the child in the Family Court without the expense of having to hire a lawyer (though it is a good idea to do so), you must retain the services of a lawyer for the applications to the Supreme Court and this could be quite costly.

I hope that I have explained the situation sufficiently for you to be able to decide which course of action you will take and in which court you will make your application. I wish you and the child success.

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.

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