Grandma wants custody of grandchild

Dear Mrs Macaulay,

I wish to relate a concern I have about my grandchild there in Jamaica. My son is in the army. He got a young lady pregnant, who now has the child. However, her living conditions are very, very poor, and she’s not able to care for the child, along with another child she has. She’s not working, therefore my husband, my son and I are the three people caring for the young child, who is one year old.

I’m living abroad and would like to file for custody to give the child a better life and future.

I understand your concerns for your grandchild, especially as it is you, your son and your husband who are providing maintenance for the baby. You have not said whether your son is in the Jamaican army or one abroad. Nor have you said whether your husband resides with you abroad, or is here. What I am alluding to, is whether any family member is in Jamaica who can and does visit and check on the baby’s welfare, and check that the mother is properly taking care of the baby. If not, then this should be rectified immediately.

As the paternal grandmother and especially one who is providing maintenance, yes, you can apply for an order granting you legal custody, AND you must add care and control of the child, so that you can provide a more secure and healthy home environment for the baby and throughout his or her developing years. As you are a married woman and your husband also provides for the child, he would have to be a part of the process or agree with you obtaining the legal orders of custody and also care and control of the baby.

Then your son, the father of the child, has equal right to have legal custody and care and control of his baby. This is provided in the Children Guardianship and Custody Act. However, since the mother has
de facto custody and care and control of the baby, if he wishes to have these orders made and to have the child living with him, he would have to apply to the court (Family Court) for these orders, and also that the mother have access to her child at fixed times specified in the order.

If your son is not in a position to apply, then you, your husband and your son can be joint applicants to the court. However, as a grandparent or grandparents, the application would have to be made in the Supreme Court of Judicature of Jamaica. Note that if your son applies, as the father, he can apply to the Family Court by himself.

Whoever applies, I trust you have talked to the mother and told her of your plans, and she agrees. If she does not agree, this would not bar you from making your application, as this is what the courts are for — to decide what is in the best interests of the child. This is the priority consideration of the court when a child is living in an unsafe or questionable environment with a parent who cannot change hers or the child’s circumstances of life.

You have not even hinted where and with whom the child would live. This is vital as you would have to produce evidence first about the unsuitability of the mother’s home for a child, and also that she ought not to have “care and control” because she is unfit to have the care of the child. A person who has the care and control of a child by an order of a court, is entitled to have the child live with them each and every day, save for any days which are ordered for the child to spend with the other parent.

You have to have full and clear evidence of all plans you have and have set up for the child’s upbringing, and of the child’s room and all the other facilities of the home. You must give details of the arrangements for the child’s medical needs, and which doctor would attend to them; education arrangements for as soon as the child is ready to commence this; arrangements for the child’s play and amusement; and for the child’s religious education and practice, etc. The court in such applications, would make an order for a social enquiry report to be done about the applicant(s) and about the respondent (in these circumstances, the mother) and a home study report of both parties. You see, the judge hearing an application for the legal custody and for care and control of a child, must have as much evidence as possible in order to be as sure as is humanly possible what orders ought to be made.

A legal custody order entitles the party to make all decisions about the child’s upbringing, like what school the child would attend; whether the child should have an operation or not or take a particular medication or not; what religious doctrine the child should be taught, etc. The judge must be satisfied by the sufficiency of the evidence in order to make the orders sought.

So you must retain the services of an attorney who is experienced in child law so that the application can be properly drawn up and filed. I would suggest that you apply jointly with your son, after all, he is the father of the child, and you must make sure that the mother is offered and granted access to her child. This is important, as two caring parents, when possible, is always better than one for the child’s emotional welfare.

The fact that you live abroad is not an impediment to you applying. The attorney will do what is necessary, and if you cannot come to attend court, he or she can prepare and file an application for you to attend the hearings online by Zoom. These types of applications are heard every day in the courts of Jamaica.

I hope that I have dealt with all your concerns. Good luck, and I hope that you will act as quickly as possible so the this baby can have a safe, healthy, secure, loving and caring home as soon as possible.

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.