A question of guardianship

Dear Mrs Macaulay,

I have a question regarding guardianship of my friend’s daughter. He was recently murdered, leaving his two-year-old daughter in the care of her mother who is not working and has other children that she cares for. I have been helping her out financially and wonder if it would be possible to become the little girl’s guardian. The mother has been sick lately and the question arose as to what would happen to her children if anything happened to her. I do not reside in Jamaica, but was wondering if it was possible to be listed as a guardian.

I assume that you were a close friend of the deceased father and that the child knows you though she may not have had a close relationship with you. I am sure that your financial assistance is of benefit to the child, the mother and her half-siblings. It, however, seems to me that this child needs more than financial assistance. It is clear that with an unemployed and sick mother, she needs more than a financial benefactor from afar. It would be an enormous advantage to the child if you could visit here periodically and have the child stay with you while you are here and build a personal caring relationship with her and really decide what exactly you wish to do for her ultimately.

You say you wish to be her guardian but you have not said what kind of guardian. Are you just going to be one who takes up the financial responsibility of the child while you stay at a distance, or are you going to be one who takes on the financial burden with custody and care and control of the child?

There are different forms of guardianships; the ones that seem to be relevant with the few facts you have stated of her circumstances are the two which I have mentioned above. The first only provides financial support for the child, which is a limited guardianship. Then there is the second, which is the one generally ordered by the courts here, wherein you have full legal custody and care and control of the child. This latter one would enable you to make all important decisions for the child’s upbringing and development and with care and control, you also have the responsibility of her daily care. You must decide what you really wish to do for the child.

You will not be “listed” as her guardian because it is a legal position to which you must be appointed. The mother could appoint you the guardian of the child by a duly executed deed, in which the kind of guardian you should be would be fully described or as is most often done, an application is made to the court — that is the Judicature Supreme Court of Jamaica and not to the Family Court — as you are not a biological parent of the child.

The first thing you must do after you decide what kind of guardianship you want, is to discuss your interest with the mother and if she agrees, then you should retain the services of a lawyer to prepare and see you through the application until you obtain the court order. If you decide for and do apply for guardianship, sole legal custody and care and control and this is granted, you can, as has been done so often, obtain the necessary visa for the child to travel with and live with you. In my experience, I see no reason why you should not succeed with your application.

I think it is a very admirable thing you are doing and wish to do for this child and I hope that I have made you see the position of a guardian more clearly and how you can be a hands-on one. But whatever you decide, please speak to the mother and clearly explain your intent and obtain her consent and then proceed as I suggest. I wish you all the very best in the hope that you do proceed to legally become her carer in the way you intend and her mother agrees.

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.