Adoption vs guardianship

Dear Mrs Macaulay,

I was trying to find out some information about adopting my nephew. With the approval of both his parents, I am trying to seek legal guardianship or adoption. The child was being kept by his mother’s grandmother; however, she migrated and so his mother asked me to keep him. I had him for a few months recently in Jamaica but I am a teacher on a programme abroad and left in January. My brother currently has him. He is a single parent and it is a struggle. I continue to assist financially but my brother was asking if I could keep my nephew, which I am OK with. However, I would need to get certain paperwork processed. I was thinking of legal guardianship but I don’t understand the extent to which this would help, compared to adoption. Please advise me on which one would be better, how long the process would take if both parents agree, the cost, and any necessary information.

I shall do my best to answer your queries, but most important of all, I shall try to explain the meaning and effect of adoptions and legal guardianships. The child’s “best interests” and the “welfare of the child” are the legal principles and yardsticks which must guide you and his parents in making the decision about what court order you should apply for, so that you can fully and properly take care of your nephew, who clearly needs a settled home and to be in the custody of someone who would be legally and continuously bound to take care of him in every particular.

The relevant legislation for legal guardianships of children is the Children (Guardianship and Custody) Act and that for adoptions is the Children (Adoption of) Act.

An application for legal guardianship should be made to the Supreme Court and I always suggest that in order to make assurance doubly sure, that such applications also include applications for legal custody and for the applicant to have care and control of the child. You see, a legal guardian is a person who is appointed to have legal responsibility for the care and control of, or of the estate of, or both, of a child until the age of majority is attained. There are many kinds of legal guardianships, some do not have legal custody and care of the child but have only the obligation to arrange for the care and provision of the child.

I therefore always suggest that applications for legal guardianship, as in your case, also include applications for legal custody and care and control. With these three orders, you as legal guardian would without question be in absolute control of all aspects of your nephew’s life. You as guardian would be his “general guardian” and be so accepted by all and any legal system. Your application for legal guardianship must not merely appoint you as your nephew’s legal guardian without more, as this would be too vague if you have to at some time obtain a visa for him to accompany you to a foreign country. By applying for a legal custody order and an order for care and control, all the boxes are ticked to prove your legal authority and capacity to make all decisions and do all things for him. Note though that legal guardianship, custody and care and control of your nephew does not extinguish the rights and obligations of his parents.

However, with an adoption order, all parental rights, duties, obligations and liabilities of the biological parents and/or guardians are extinguished and they become vested in the adopter, as if your nephew was your biological child. I do not think that I need say any more than this for you to understand the difference. An adoption order overrides all the former.

So you should, if you choose to proceed with an application to the court for legal guardianship and custody and care and control, retain the services of an attorney to prepare your Fixed Date Claim Form application, which would formally be against your nephew’s parents as the respondents. Your affidavit in support of your application must state all the facts relating to you, your relationship to your nephew and his parents, the historical facts related to his circumstance, and why you are making the application and all the arrangements you have in place or are making for his upbringing. It would be advisable that the parents are also legally represented, so that their lawyer can inform the court that they understand and are in full agreement with you having full charge of their son.

This does not mean that you cannot apply for an adoption order later, even if you have the above orders.

You should go on the CDA website – https://childprotection.gov.jm – and get information directly from them of the requirements to do an adoption application, the length of time it would take, and the costs to do it.

I cannot advise you which one to choose, the choice is for you and his parents to make. I wish you all the very best future you all can devise.

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.