‘Grandma’ wants custody

Dear Mrs Macaulay,

I’m a Canadian citizen and I have been going to Jamaica for the last three years with my son who is also Canadian. While on our trips there my son met a woman and they got together. They would always meet when we’d go there.

My son went to Jamaica by himself in June 2015 and he spent his time with her. When he returned to Canada he got a phone call from his friend saying she was pregnant. We will be returning to Jamaica in January or February 2016. By then she should have had the baby and then we will have a paternity test done to see if my son is the father of the child.

What I would like to know is, if the child is my grandchild, can I get custody and then adopt the child? The mother has said she is willing to give me custody for me to raise the child in a nice environment where there is health care, very good schooling, and a nice place to live.

You all have clearly discussed the matter in detail because you state that the mother of the child has stated that she is willing for you to have custody of her child. You relate that her stated reason for her decision to hand over custody of her child to you is that she wants the child to grow up in a nice environment, where there is health care and very good schooling. This, translated, amounts to her wish for her child to have the chance of greater developmental facilities and for a better chance in life. I assume that because of the way you and your son have reacted to her and her news, even though you have been practical in asking for the paternity test, she is certain that you will love and nurture her child and provide the type of protection a growing child needs.

Let me then answer your enquiry. Yes, you can have custody of your grandchild after this is proved to be the case. So assuming this to be the case, I would suggest that custody be granted to both you and your son. Once he is proved to be the father, he has an equal right to custody of the child as the mother has.

I would also suggest that he ensures that his name and full particulars appear on the child’s birth certificate. This can be arranged if you ensure and pay extra for an express DNA test to be done, so that the results can be ready in a few days. Then he and the mother can both go to the Registrar General’s Department and declare him to be the father who wishes to be entered as such in the child’s birth records.

I would also suggest that your son and yourself, with the acquiescence of the mother, should decide when the transfer of care and control and custody ought to take place between you. I assume that it may be your intent for the baby to be breastfed for some time by the mother, which would be a very good thing for the child. I also hope that, if the mother wishes, she would have some access to the child subsequently.

In any event, you and your son ought to go to the nearest Family Court with the knowledge of the mother, to both file for not only custody of the child, but also for you both to have care and control. Of course, either of you can apply on your own for these orders. The application should be served on the mother at least seven days before the date of hearing.

At the hearing, you should all attend and she would have to inform the court that she consents to the father and you, or you alone, being granted custody, care and control of her child and give her reasons for her decision to consent to the order being made. The court has to consider and decide what would be in the best interests of the child in all the circumstances and decide accordingly.

Generally, once the court is satisfied that the mother understands the import of her decision and that the child would be properly and well looked after in a loving home environment, it will make the order to give the child a better chance in life. As soon as the order is made, you must apply for certified copies (more than one) there and then and collect them once they are ready.

Such an order would be needed for a passport to be issued for the child and by the Canadian High Commission for the grant of a visa for him or her to go and reside in Canada.

I am not sure whether you would still wish to adopt the child if your son also has legal custody and care and control of the child, because he would not need an adoption order once the child is his and he has legal custody and care and control, even if these were granted to you both jointly. Anyway, you can apply by yourself to the court for these orders, in which case both the mother and your son would have to consent to you being granted custody, care and control of their child.

The court would require reasons from them both why they consent, and since he also resides in Canada, why he is also prepared to give up his parental rights to you. As I said above, the court will then decide what is in the best interests of the child.

You can, of course, later apply to adopt the child if you still deem it necessary. The fact that the child would have been living with you and you would have been providing care and control would assist with any such application and may in fact shorten the time it generally takes to go through. If you do apply to adopt, again both the father and the mother must consent. The Adoption Board would contact them and obtain this directly.

The first thing you ought to do, however, after a positive result of the DNA test, is to concentrate on applying for and obtaining a custody, care and control order from the Family Court which serves the parish in which the mother resides(or a Resident Magistrate’s Court if there is none), so that you would be able to get the child’s passport and visa to enable him or her to travel with you to your home so you can start your lives together as soon as possible. The younger the child is when the change of home environment occurs in his or her life, the better it would enable him or her to settle fully without too much emotional disruption.

I hope I have clarified the position for you. Good luck to you and your son, your ‘grandchild’, and the mother of the child.

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.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.

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.

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.