Transferring guardianship to a relative overseas
Dear Mrs Macaulay,
Please direct me to the right path. I want to send my daughter, who is an American citizen, to live with her grandfather in the USA. I want to do it the right way, so he can have temporary guardianship of her, until I can join them. What do I need to do? My daughter is 14 years old.
You have not said whether you yourself have legal custody of your child and you have not mentioned her father. Consequently, I am assuming that you do not have an order granting you legal custody and care and control of her and that her father is not around or in her life in any way.
If I am correct in my assumption, you must make your own application for sole legal custody of your child and for your father, her grandfather, to be appointed her guardian with care and control of her. This is so that she can live with him and he would have, as her guardian, the authority to make decisions about her welfare and development. In other words he will be responsible for her day-to-day care and to make decisions and arrangements for her development.
Such an application will have to be done in the Supreme Court and if you do not have contact with her father, you will also have to make an application for substituted service to be made on him by way of advertisement, and you can add the delivery of a copy of the documents to a family member of his who you know will get them to him. He will, of course, be the defendant named in your application.
The application has to be done pursuant to the Children (Guardianship and Custody) Act, in the Supreme Court. Your application must state the orders which you are asking the court to make, all of them with the addition of a safety claim for the court to make, “such other or further orders as the court seems just or necessary”. This will ensure that if any fact leads the judge to deem it necessary to make an order or orders which you have not specifically claimed in your application, in the best interest of the child, it or they can be made there and then.
You must, of course, support your application with your affidavit in support of it. In it you must state all the facts of your daughter’s birth, and those relating to the father and his relationship, if any, with her. The facts relating to who was responsible for her day-to-day care from her birth up to the date of your application and also who provided monies for her maintenance should also be included. You should also explain the “whys” for all of those facts. You must also detail facts of her schooling and religious practice and of her health situation. You must also specifically explain why you wish to send her to your father and give details of his home facilities and which school she would attend and who, if anyone, would assist him with her care.
You must also exhibit a copy of her certified birth certificate to you affidavit. Your father will also have to have filed his own affidavit agreeing to have and look after his granddaughter as her guardian. He must give his age and occupation and also describe his home facilities to show that he has enough room for her, who else resides there with him, and who will, if necessary, assist him with her care. He must also say clearly that he is in good health and is ready and willing to take on the responsibility of being her guardian until you are able to join her and take on your custody of her.
You could also make a straight application for you and your father to have joint legal custody of your child, with care and control to him, until you join them.
This will also have to be supported by yours and his affidavit in support of the application and you can also add that he be appointed her guardian also. He will have all the authority necessary to make all decisions about her welfare and development if he also has custody of her and for her to live with him, if the order for him to have care and custody of her is also made in his favour.
So, you must get yourself a lawyer to assist you with the preparation of your application. I suggest you move ahead quickly with this and have your lawyer file an affidavit of urgency on the basis that your daughter needs to be settled as quickly as possible to start her schooling at the beginning of the next academic year.
I trust that you understand the processes I have suggested and I wish you success and the very best.
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.
