Mom wants to give up custody

Dear Mrs Macaulay,

I am reaching out to inquire about the process and options available for transferring full custody of my daughter to my sister, who resides in the United States. After careful consideration, I believe this arrangement would be in the best interest of my daughter’s well-being.

I am seeking your expertise to understand the legal procedures involved in such a custody transfer, and any documentation or information required to initiate this process. Additionally, I would appreciate any advice or recommendations you may have to ensure a smooth and legally sound transition for my daughter’s custody.

If possible, could you please provide information on the necessary steps, any forms that need to be filled out, and any other relevant details to facilitate this custody transfer? Moreover, I would be grateful for your guidance if there are specific legal channels or authorities I should contact in Jamaica or the United States.

I understand the importance of such matters, and I am committed to following the proper legal procedures to ensure the best outcome for my daughter.

I am very happy that you understand how very important your decision is to grant full legal custody of your child to your sister who resides in the United States, and that you are determined to pursue the proper legal provisions and procedures to achieve the very best for your child.  I shall therefore do my very best to ensure that you understand the applicable legal provisions and what the procedures are to achieve your goals.

I must first mention certain matters of fact which you did not mention in your letter.  The first is that you did not state your child’s age and whether she lives with you, and the level of her education and religious education and practice.  You also have not stated whether you have discussed your plan with her, and if she agrees with it. You have not said whether she knows her aunt and has a good relationship with her.

The second point is that you made no mention of her father, whether he is still alive, and if so, his address and occupation, and also the relationship, if any, he had or has with his child. Did he ever provide any form of maintenance for necessities for the child?   If you have none of these facts, you must clearly say so, and say when you lost contact with him. You see, these facts about the father are necessary for you to disclose, in order to successfully achieve your goal and to enable you to act on your own, without his consent.

The third point is, have you discussed your plan with your sister and is she in full agreement with it?  This is very important, as my advice will mean that she must play the lead role to enable you to ensure that she obtains full legal custody of your daughter. My firm suggestion is that an application must be made to the Supreme Court by your sister, for her to be granted sole legal custody (and care and control) of your daughter. This is the most direct and the clearest route which will provide you and your sister with the clearest order of the court, and with its seal on the original and certified copies, to enable your sister to successfully obtain your daughter’s visa to enable her to go and reside with her custodial aunt in the United States.

So let me try and take you through the steps and the reasons why I am suggesting this course of action.

You must obtain your sister’s and your daughter’s agreement to the plans being made which will affect both their lives. Your daughter’s opinion must be sought and stated for the court hearing the custody application, as long as the child is old enough to understand the issues.  This is provided for in the Child Care and Protection Act.  I am not quoting the actual words of the Act so as not to cause confusion for you and your sister.

But all of you must understand the legal provisions which apply to matters of this kind.  The result of custody being granted to your sister would be that your child would have to leave the home she knows, and live with her aunt who would make all important decisions about her life instead of you, her mother, used to do for her.

You state in your letter that you believe this planned arrangement to be in the best interests of your daughter.  The law states that the court in considering an application for the custody of a child, must be satisfied that its order would be in the best interests of the child. In order to satisfy the court on the issue of your daughter’s best interests, your sister will have to state in her application the orders she seeks, which should be for her to have sole legal custody of her niece and care and control of her, which means that she should live with her and she would be responsible for her daily care and upbringing. This includes providing her maintenance, being responsible for her educational, medical, dental and optical expenses, and ensuring that she has and continues her religious education and practice.

The Children (Guardianship and Custody) Act  provides the law which relates to custody, care and control of children who do not fall within the provisions of the Matrimonial Causes Act (which provides for proceedings for divorces and for applications for the children thereof).  Your sister would be the applicant to the court and you would be the respondent, which means that you must answer to her application by stating that you have no objection to it and agree wholeheartedly with her application, and you know that this is in the best interests of your daughter. Your occupation and that of your sister, and a description of her home to show that she has room for her niece, as well as who lives with her in her home, must all be in her affidavit.

You must assist your sister to obtain a certified copy of your daughter’s birth certificate because she must exhibit this copy to her affidavit in support of her application to the court.  She must relate the facts of your relationship to each other (the judge might require proof that you are in fact sisters).  In any event, you could both give evidence of this fact during the hearing of the application, whether it is heard in person or online via Zoom.

She must also state the facts of your life which led her to agree to have care and control of her niece, and that her niece living with her and being brought up by her in the best way possible and in a good and comfortable home environment is in the best interests of the child.  She should also state what she knows of your daughter’s father and how he treated you and his child.

Let me say at once that you must also state in even greater detail than your sister the details of your pregnancy, the birth of your child, and all the facts about the father and why you have to give the custody, care and control of your daughter to your sister.  You must demonstrate that you cannot continue to take care of your child in clear terms, and also what happened to the father and where he is and any efforts you have made to find him.  The judge hearing the application would readily agree as long as your facts are clear and satisfactory.

You see, you cannot just ignore the father because you and he have equal rights to apply for custody of your child, and also apply regarding any other matter affecting the child. So, in fact, your sister’s application for custody care and control of your daughter should really name you and her father as respondents; this is why you must detail what happened to him, why he is not in the picture.  If he abandoned you and the child, you must say so, and when he did so, and that you do not know where he is or whether he is alive or dead; otherwise you must find him so that he can say what his position is about the application, and if he agrees to your sister having sole legal custody and care and control of his child.

You and your sister must retain lawyers to act for each of you. The judge must have a clear conviction and be satisfied that you both have stated the truth, and that your sister being granted custody and care and control is definitely in the best interests of her niece, and that you understand that all your parental rights of custody, care and control would by the order in favour of your sister, cease to be yours.

Your sister would then by law make all and every decision for your daughter’s upbringing and welfare and well-being.  The judge, though, could also include an order for you to have access to see and spend time with your daughter, or not, as would best suit the circumstances.

I hope that you will understand the process and why I have suggested the manner in which the application should be handled, which is the usual and must direct means to obtain the order necessary for your sister to be able to or to have a chance of having your daughter go and live with her in the United States, her home.

I wish you all the very best,  and that your daughter has a happy and successful life.

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.