Applying for custody from abroad

Dear Mrs Macaulay,

I am trying to find the application to gain custody of a family member from Jamaica online, but I’m having some challenges finding it or understanding the process. I came across your articles and was hoping I could get help.

The minor is 10 years old, his mother has passed, and his father has granted me access to take him because he does not have stable housing. I am his cousin, 28-year-old single woman, currently living in the United States. My family member is in Jamaica.

I’m not residing in Jamaica so some things are a little more challenging for me to find.

Thank you in advance.

An application for custody of a child is not merely a formal application, but a very serious one as it may change the course of a young child’s daily life and the course of their development and future. It is governed by the Children (Guardianship and Custody) Act and the inherent jurisdiction of the Supreme Court, whenever the circumstances of the case require it.

A person applying for custody may only need an order which grants them the legal authority to make all the important and necessary decisions for the subject child’s life, development and needs. However, from what you have stated in your letter, as the child’s mother is dead and the father has decided to put his child in your full charge and care because of his unfortunate circumstances, you need to apply for orders granting you custody, and the care and control of your minor family member. You could also add an application to be appointed the child’s guardian, which would cover all legal and factual bases regarding your authority to make decisions, have the child reside with you, and to care for the child daily, and that you would provide for all the child’s necessities for his wholesome development.

Your application must be made to the Supreme Court of Judicature of Jamaica, which has the jurisdiction to deal with applications of this kind by family or persons who are not a parent of the child in question. These applications are heard in chambers and not in open court. The provisions of the Act must be understood and in the course of arguing your application before a judge, he or she may request case law (which are authorities on the issue), and which would support the application on which you rely. The courts deal with these applications very carefully, because of the need to act in the best interests of the child and ensure the child’s safety and wholesome development.

Your application and your affidavit in support must be very carefully prepared and your affidavit must exhibit a certified copy of the child’s birth certificate and also a copy of the death certificate of the child’s mother, and a certificate of the mother’s marriage to the father (if that is the case). If they were not married, I hope the father’s name and particulars are on the child’s birth certificate, because if not, it means more documents and affidavits would have to be filed to prove his paternity.

What I hope I am making clear to you, is that you must take steps to retain the services of a lawyer here, who is experienced in children’s rights law. You cannot as a lay person prepare the application and supporting documents properly, and those which the father must also do, and any other persons necessary to support his paternal claim. The application cannot be done by way of a form.

It is laudable that the father is thinking of ensuring a good life for his child. I therefore hope that you do go ahead with the application as soon as possible. I suggest that you try to make some kind of temporary arrangements for the child’s welfare while your application is being done. This is a fact which should be included in your affidavit in support, and the arrangements you have made for when the child goes to reside with you. There are details which must be put in your affidavit to satisfy the judge hearing the matter. You need an attorney-at-law to assist you.

As you must know, you can only apply for a visa for the child (so you need to get a passport for him), after you have the orders for custody, care and control, plus guardianship, if deemed necessary. There are many things which you need to set in place and the sooner you start, the better it will be for the child’s welfare and for the successful conclusion of your application to the Supreme Court.

You must consider that for these applications the parties must appear in person, that is you and the father. Some judges also ask to see the child, so they can speak with the child directly, but there is provision for hearings by way of video conferencing to be applied for when a party cannot for reasonable reasons travel here to be present in person.

The judge may also order a social enquiry report to be done here of the child’s current circumstances, as well as where you reside, of your home, and the arrangements you have made for the child, and your own life circumstances. You see, the judge must be sure of your ability in every way to assume full charge of the child and to take care of him properly.

I hope that I have not frightened you off with all this because this child clearly needs you and I am certain as long as your application is properly prepared and all necessary facts are put in it, that you would succeed, because this is clearly a child who needs you to give him a safe and a good home and provide the care he needs all around. It seems clear that you and his father want to act in his best interests.

Please act now by applying for the certified copies of his mother’s death certificate and of his birth certificate (and marriage certificate, if applicable) and then retain the attorney to start preparing your application.

I wish you success and that this child who has lost his mother at such an early age has you to care for him and provide him with a brighter future which unfortunately his father cannot provide for him.

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.