Gaining custody of an orphaned minor
Dear Mrs Macaulay,
I would like custody/to adopt my niece who lost both parents in early 2023. My niece is an orphan at 14, and I would like to make her life a little more peaceful. I live in New Jersey, United States, so I don’t really know what the rules are. My niece needs to live a life where she can be given the opportunity to go to school and college as she grows older, understand that she has value in life, and receive lots of love and care.
Let me start by extending to your niece my deepest sympathy for the loss of her parents, and additionally because their deaths occurred within the same year. I cannot help but wonder how she is dealing with her losses and whether she is receiving therapeutic treatments to assist her
You must, if you have not done so already, take control of your niece’s life and start providing for her maintenance and all her necessities. Make sure that you have taken on the obligations of a parent in every way.
I advise you to move as quickly as you can to retain an experienced family law attorney to act for you so that you can make your applications for full legal custody, care and control, and for adoption as quickly as possible.
The first thing that you must do is speak to your niece about your hope for her and the plans you wish to effect in order to secure for her a settled and happy home life and a future of opportunities for her development. Once you have your niece’s agreement to your plans, the next thing you must do is obtain certified copies of her birth certificate, as you would need to submit a copy for your respective applications.
The birth certificate must be exhibited with your affidavit in support of your application for orders appointing you her sole legal custodian, and granting you care and control. Your affidavit must state all the facts on which you rely to prove your relationship to your niece, and exhibit any document which illustrates the fact that she is your sister’s child. You must state who resides with you and if you are married, that your partner consents, or they can make their own affidavit in support and join you, thus making your application a joint one.
Your affidavit must also contain a description of your home to illustrate that you have sufficient room for her. It must also give facts about the school she would attend, the church she would attend and receive religious education, how she would be provided with medical services, that you would provide for her maintenance and how, and that your earnings are sufficient to do so.
It would certainly assist your adoption chances if she was already in your custody and you had care and control, and she was residing with you, and you were providing for all her necessities. So it is best for her welfare that you obtain sole legal custody and care and control of her first, and provide a safe home and a loving and caring family for her as quickly as possible.
Your application for sole legal custody and care and control should be done in the Supreme Court, and you must ask your lawyer to file an affidavit of urgency with all the other documents, explaining why the application must be heard as quickly as possible. Legal custody would give you full authority and competence to make all the necessary decisions for her life. Care and control relate to your niece’s day-to-day care. You must also state in your affidavit that you intend to and are applying to adopt your niece.
You should have the affidavit in support, plus affidavits of two supporting witnesses who should depone to your familial relationship to your niece — one through her mother, and the other by a relative of her father.
By the way, the process by which legal custody can be obtained, and an adoption done, would apply to both an aunt and an uncle, save for a slight addition to the requirements for uncles. If you are an uncle, your proof your relationship to her must be very clear, cogent and honest, as she is a girl child. You would have to convince the court that she would be perfectly safe, in every way, living in your home with you and any other persons who reside with you — especially if you are single.
While your application is being prepared or you are awaiting its hearing, you should also have your lawyer assist you to obtain, fill out, and submit your adoption application documents. Or you can go on the website of the Child Protection and Family Services Agency Therapeutic Centre where you will find clear notes to even do your initial application yourself.
I wish you and your niece all the very best, and if you need further information please just write again with full details of what you need to know.
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.
