American interested in guardianship

Dear Mrs Macaulay,

Is it possible for a Jamaican citizen to give legal guardianship rights of his/her child to an American citizen? The American citizen is Jamaican-born. The child is a cousin of the American citizen. The parents of the child are both alive. The parents are not in a relationship and they are not capable of financially supporting the child and his medical needs.

The short answer to your question is yes. You see, the Children (Guardianship and Custody) Act does not say that only Jamaican citizens can be appointed guardians of children. In fact, it does not mention citizenship at all. I am not going to deal with the provisions relating to the appointment of testamentary guardians, because from your letter it is clear that you have no interest in such a guardianship.

From your letter, you indicate that you really are more concerned with that which would give the legal right to a person, a Jamaican/US citizen, to have full legal authority over a child and the right to have that child reside with you or as you decide is best for the child. I would therefore suggest that pursuant to the same Act, you apply to be granted orders for the custody and care and control of the child. You can also add to these an application to also be appointed the guardian of the child.

Your application must then be made to the Supreme Court here, supported by your affidavit in support. The application with you as Claimant will be against the parents of the child as Respondents, as they are the legal guardians of the child and are both entitled to the custody and care and control of the child. The court, however, has power to make orders on the application of either parent and grant custody to both jointly or to one with access to the other, in such terms as the judge decides are in the best interests of the child.

Anyway, I assume that the child’s parents are agreeable and want you to assume responsibility and have rights of custody and care and control of their child. So though you name them as Respondents, your affidavit would state clearly their circumstances and consequently their desire to do the best for their child by agreeing that you should be the guardian and also have custody and care and control. You must, in your affidavit in support of your application, also include facts about your relationship to the child and exhibit a certified copy of the child’s birth certificate. You must state your occupation and assurance that you are able to financially and otherwise fully care for the child. You should also give a full description of your family (if you are married your spouse has to do an affidavit proving their full agreement to your plans for the child), and give details of your home (illustrating that you have room for the child). Then you must indicate the school the child would attend, exhibiting any letter of acceptance or some other document from the school (if you have this already, and if not, say why you know the child will be attending that school) and state which church the child will attend and receive religious instructions. You must also state clearly why you are making the application and that you believe it is in the best interests of the child and you can ensure that the child is properly cared for in every way.

The child’s parents in their affidavit in reply to yours will of course state that they agree to you being the child’s guardian and for you to be granted legal custody of the child and to also have care and control of the child in your home. They must state the familial relationship between you and them and the child, and detail their circumstances in life which make it impossible for them to try to continue to care for their child. They must make clear that they want their child to have a better life with opportunities to lead a truly wholesome life that you can provide and they cannot. They must also make clear that being with you will be in the best interest of their child, and that they therefore wish to ensure this.

You must therefore engage the services of an attorney-at-law to prepare your application and your affidavit in support and have the same filed and served on the parents of the child. They must also have the services of their own attorney to prepare their affidavit in reply to yours, and to file and serve it on your lawyer.

All of you will have to attend in chambers at the Supreme Court for the hearing of the matter so that the judge can satisfy himself or herself that orders sought are in fact in the best interests of the child. If the child is old enough to speak for herself or himself, the child should also be there in case the judge wishes to hear from the child directly that he wishes to be with you.

I hope I have clarified the steps for you. Best wishes to you and 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. 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.