Applying for legal guardianship

Dear Mrs Macaulay,

I have a query as it relates to applying for legal guardianship. The situation is that the mother and father are unable to provide for the child’s needs. The mother does not work and has no physical address as she stays with friends. The father does periodic road work and contributes $2,500 monthly. I have been supporting the child financially and recently took on the responsibility of taking the child in and providing for her. She is only two years old. I would like to know what measures or steps I should take in order to apply for legal guardianship.

Do I have to wait for a certain period before applying, since it has only been two months since I’ve had full care of the child?

It is apparent that the child’s parents have consented that you can have full care and control of their child and you have agreed to do this. You and they must be commended for what you are doing — something that is clearly for the benefit of the child.

Since you have had full care and control of the child for some time now, though the Children (Guardianship and Custody) Act does not state or require any particular period of time, a court would look more favourably and have fewer problems deciding in your favour as the child has a settled life with you and all else would be positive regarding the agreement of the parents.

In my opinion, since you have the de facto care and control of the child, what you really ought to apply for, or also apply for, is legal custody of the child, as well as care and control. The application for guardianship can also be made in the custody application. I have done applications for custody simpliciter; custody, care and control (with or without orders for access, depending on the particular circumstances); guardianship simpliciter; and guardianship, custody and care and control.

You see, a guardian, when appointed during the parents’ lives by them or by the court, can be testamentary (will take effect after the death of the parent), or can take effect immediately after the order is made, and will have full authority over the child as long as no conditions are set at the time of appointment. A guardian may or may not have care and control of the child and this is clearly not what you wish. You want to fully take care of this child.

You therefore need to make your application to the Supreme Court for you to be granted sole custody, care and control of the child. This gives you the legal authority to make all decisions about the child’s welfare and development. The order of care and control permits you to have the child living with you legally during her minority (and after 18 if the child so chooses, with your acquiescence). You can, as I said, add an application to be appointed the child’s guardian and thereby ensure your peace of mind.

The child’s parents will be the respondents in your application as they have the legal right to custody, care and control of the child, and the court must be satisfied that they are freely passing to you those rights and that you have accepted this.

Your application would be supported by your affidavit, to which the child’s birth certificate must be exhibited, and you have to relate all the facts about how you came to have the child, the parents’ circumstances (lack of amenities, etcetera, etcetera), and that they agree that the child should live and grow up with you.

If you and the parents have agreed that they will have some access, you must also state this and the terms. Your application and affidavit in support must be served on the parents and it would be advisable for them to respond and file a joint affidavit in answer, giving their reasons for consenting to the arrangement with you for their child and that they believe that this is in the child’s best interests.

It may be, because of what you have stated, that you have to assist them to get their own independent lawyer to prepare and file their answer and explain the legal consequences of the orders sought in your application. You and they should attend the hearing in chambers at the Supreme Court, on the date set for it, so the judge can address any questions deemed necessary to all the parties.

It is a very straightforward application and ought not to cause any problems. You need to act soon so that you will be in the position to get the child into school, and to have medical treatment when necessary without having to get the parents to assist you to do what is necessary each time.

I hope I have clarified the position for you to ensure that you have full authority and responsibility for the subject child.

All the very best to you, the child, and to the parents.

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.