Legal guardian now wants to adopt

Dear Mrs Macaulay, I am the legal guardian of my grandchild, which was obtained through the Jamaican courts. The child has resided with me in United States (US) for the past four years. My husband and I would love to adopt the child. We were told by an attorney that I would need the guardianship document to be amended, giving me full custody, for a full adoption to proceed. I am a permanent resident my husband is a US citizen. The parents have agreed to the adoption. What’s the process to get this completed?

The simple answer is that another application must be made to the Supreme Court, but the devil is in the details. I say this because from your sparse letter, I understand that you alone are the legal guardian of your grandchild, as the legal guardianship order does not include your husband. Even if it did include him, another application must be made, not to amend, but to “vary“ the order. Or, you and your husband should apply to be appointed together as the legal guardians of the child, and also to be granted legal custody and care and control.

Clear reference must be made in your description as a duly appointed legal guardian pursuant to the order of the Supreme Court. A true copy of the original or a certified copy should be attached to the fixed date claim form (FDCF), which should say so. This clearly indicates that you must retain an attorney-at-law experienced in family and child laws.

It is unfortunate that your previous application did not include an application for custody and care and control as well. A guardian does not necessarily have custody or even legal custody of the subject child unless this is specifically included in the orders made. If you were the sole legal guardian appointed, then you were clearly the sole applicant. So if I am correct in this conclusion, then properly speaking, the application for inclusion of legal custody cannot merely be filed to vary your order, as your husband was not a party in that application.

You must also be aware of the relevant Acts — the Children (Guardianship and Custody) Act, the Adoption Act, and the Maintenance Act.

I therefore strongly suggest that you and your husband file a fresh application, a FDCF, with both of you as the claimants, and seek orders first to appoint you both as the child’s legal guardians, and secondly, to grant you both legal custody and care and control of the child, stating that the child shall reside with you, that you both shall continue to maintain the child, and any other specific orders which your circumstances require. And finally, with the catch all, “such other orders which the court deems to be met”.

This joint application should be supported by your detailed affidavit in support containing all your relevant personal facts, how you got the child in your care, the facilities and other persons in your household, the school the child attends, and religious practice, and that you can comfortably provide for the child’s maintenance, etc.

A joint application for you and your husband could be done, if the details do not make it too long and complicated, or separate affidavits in support of your FDCF can be done for each of you if this makes the facts clear and in shorter documents. To your own affidavit, since you had the guardianship order, a copy of it should be exhibited.

I tend towards the separate affidavits approach as this would ensure that they are shorter and clearer for the judge’s use in the hearing, and will assist greatly with the making of the necessary orders. You must include as much factual information about the life of the child in your home and within your family, and you can also have additional affidavits filed be persons who can depone to the factual daily way of life of the child with you.

The parents of the child would be named in your FDCF as the respondents, and after the filing, a copy must be served on them. Then they must file their necessary responses and clearly state that they consent to all the orders you and your husband are applying for, and detail the facts of how you have had charge of their child, that they still believe it to be in their child’s best interests to be with you and your husband, and that the child is blossoming in your care.

I also suggest that you attorney-at-law also files an affidavit of urgency for the FDCF to be set down for hearing as quickly as possible, and it should be stated therein that you and your husband are also applying to adopt the child and that the orders being sought are needed to assist the Adoption Board to decide your application favourably and quickly.

Please also have your lawyer assist you to put in your application to the Child Protection and Family Services Agency, so that they are both being dealt with contemporaneously. This is the best way to deal with both the court application and that for the consideration of the Adoption Board, which needs the required home study report.

I hope that I have assisted you so that you can move on with your applications for guardianship, legal custody and care and control in the Supreme Court, and your application for adoption at the same time. I wish you timely success.

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. All responses are published. Mrs Macaulay cannot provide private, personal responses.