Mom wants brother to file for her son
Dear Mrs Macaulay,
My brother is a resident of the USA and I am living in Jamaica. I would like my brother to file for my son who is nine years old, but I was told that the only way that can happen is if he’s appointed as his legal guardian. How do I go about appointing him as legal guardian?
I have noted the fact that you have made no mention of the father of your son. You have only stated that you would like your brother to file for him. You have also not said anything about the reasons for your decision or about your brother’s situation, or yours. I have no idea whether he has agreed with your wish, whether he is married, and if so, what his wife’s opinion is about your wish and plan.
I mention these things because your brother would have to be a party to the application, which must be made to the Supreme Court, because applications for custody, care and control would have to be added to the application that he be appointed as your child’s guardian. He, your brother, would have to, in an affidavit, clearly state his agreement to be so appointed and give details of his home environment and facilities and the arrangements for your son’s enrolment and attendance at school, the full description of his home environment and proof of it, the arrangement for your son’s religious education, and details of the arrangements of his after-school and general care, and who would provide this, how, and where.
You would have to satisfy the court that this would be in the best interests of your son and would be best for his general welfare. If your brother is married, his wife must also by affidavit evidence demonstrate and satisfy the court that she is in full agreement with the application and would assist your brother with the care of your son.
In addition, your son’s father must be informed of your plans, and if he consents, he must also file an affidavit to this effect. If you do not do this, then the court would order you to serve him with the application and affidavits in support, so that he can be fully informed and have an opportunity to object, if he so wishes.
You and your brother, and indeed, your son’s father, would have to attend court for the hearing of the application. In fact, the judge may require you to bring your son as well, so that he or she can be satisfied, by speaking directly with your son, that he understands what the application means and that he agrees with it and is comfortable with the idea of going to live with his uncle in America, and that his uncle would take the role of his parent there.
You see, the court must be satisfied that what you plan would indeed be the best thing for your son. No court would take the decision of granting your wish lightly, but would require sufficient evidence from you and all the relevant parties that it is indeed the best thing for your child for your brother to be appointed guardian.
You see, if the appointment and orders are made, your brother, instead of you or your son’s father, will have full parental responsibility for the care of your child and for his welfare by providing him with adequate shelter, food, clothes, medical care, educational and religious upbringing and ensure his emotional development and stability.
It is the duty of the court to regard the welfare of the child as its first and paramount consideration when deciding such applications. You must therefore consider this matter deeply, fully and responsibly. If you still wish to go ahead, you have to ensure that all the parties I have referred to and you yourself submit detailed affidavits in support of the application so as to satisfy the court that the appointment of your brother as his guardian and orders sought to enable him to give and live with the uncle in America, are indeed best for the welfare of your son.
Good luck.
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.
