Grandma wants legal guardianship

Dear Mrs Macaulay,

I would like to help provide some kind of stability for my granddaughter. I live in the United States (US). My son is her father (his name is not on her birth certificate) and he lives in the US as well. Her mother is another story but she provides no type of support for her. I would like to obtain legal guardianship of her and get her to the US. How do I go about that?

You have not stated the age of your granddaughter, but I trust that she is under 18. I’m also not sure what you really mean by the statement that the mother provides no support. Do you mean that she does not provide any financial or other material support for her child, or that she does not provide any care and guidance for her? Are you saying that she shows no interest in her child and her upbringing? That she is completely failing to meet any/all the obligations of a parent, that she is, in other words, a bad parent?

You say that as a result you wish to provide some kind of stability for your granddaughter and wish to have her living with you in the USA. I understand by your non-specific language that you mean that you wish to have legal guardianship, custody of her, and to provide care and control for your granddaughter. You wish to have her under your direct daily care in your stable and loving home and to provide, in addition, all her material necessities for her proper and wholesome development.

What then should you do? You must first understand that though you and your son have accepted and ‘know’ that the child is your granddaughter, this has to be established in law. Your son must therefore take legal steps to have a declaration of paternity made declaring that he is the father of the child. You, as a purported grandparent, can have no locus standi to be appointed as her guardian and to be granted legal custody and her care and control, without such a legal declaration with an order that an entry be made of the fact in your granddaughter’s birth records and birth certificate. This, of course, requires that both your son and ultimately, you yourself, need to retain and obtain the services of an attorney-at-law to act for you both to prepare all the applications which must be made to the court. In your particular circumstances, this would be to the Supreme Court of Judicature of Jamaica, as you no longer reside in Jamaica, and as you are not a parent but a grandparent and you wish to be the child’s legal guardian and to have custody and care and control of her. This falls within the Supreme Court’s jurisdiction.

For your son’s application for a declaration of paternity, this could be done in the Family Court for the parish in which the mother and your granddaughter reside. However, this would mean applying to two different courts as the applications must all be prepared and filed in the respective court registry/office and then served on the mother who will be the respondent on your son’s application. You would need your son’s agreement and active support. Your son and the mother would be the respondents for your application. The relevant law is the Children’s (Guardianship and Custody) Act.

Your son’s application for a declaration of paternity would require a DNA test to be done, which requires that the specimens of both your son and his purported daughter be obtained and tested as ordered and the result be submitted to the court so it can make its decisions. If the test shows that your son is indeed the child’s father, then the declaration of his paternity would be made and the consequential orders applied for.

In the extraordinary event that your son is not in agreement with your plans, you can make the application for a declaration that you are the child’s grandparent by having the court order that the specimen swabs be taken from you and the child for the relevant DNA test to be done by a named laboratory and the results provided to it. I know for a fact that this has been successfully done when the mother has died or has abandoned the child and absconded and cannot be found, or is a bad parent, and declarations of grandparent(s) are made and consequential orders applied for. If you have to make the application, it must be made in the Supreme Court and in which case, an affidavit of urgency with the grounds/reasons for an urgent hearing should accompany your application. If the DNA test in these circumstances show that you are indeed a grandparent of the child, then your application for the other orders (which should have been included in your fixed date claim form) can all be dealt with in the same hearing by the judge.

You definitely need the assistance of a lawyer to properly prepare all the necessary applications to the court with the jurisdiction to hear and determine the matters at issue and apply for you and your son to appear in the hearing(s) online by way of videoconferencing/Zoom if you both or either of you cannot travel to be present in person because of acceptable and reasonable and understandable causes. There are several matters which must in law be included in your application(s) and your affidavit(s) in support on behalf of your son and yourself, which makes it an absolute requirement that you need the services of an attorney-at-law with legal knowledge and experience to prepare them and pilot you and your son successfully through the hearing(s) of the applications.

I have made an effort not to make my reply to you very legalistic, but I have sought to make clear the legal steps which need to be taken.

I hope I have made it clear to you that there is no impediment why you cannot achieve your laudable wishes for your granddaughter and for her to have the loving, stable and safe home you would provide for her and thereby enable her to use every opportunity for her development, so that she can realise all her dreams and achieve all her goals.

Please act as soon as possible to obtain the necessary legal representation and rescue your granddaughter as soon as possible.

All the very best to you, your son and granddaughter.

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.