DEAR MRS MACAULAY, I have full legal custody of my two children, and their father has visitation. He has never been a solid influence in their lives, and in fact, hardly even comes to get them when he’s supposed to. I’ve been hearing a lot about writing wills, and I wonder if I could write my will to state that if anything should happen to me, my kids would go to my sister, instead of to their father. Would the father automatically get custody, even though he is unfit? Would a will supercede this, if so?

Thank you for your letter.  I understand your concern, as though the father has access to the children, you say “he hardly even comes to get them when he is supposed to”, clearly as the court order specifies.

He is clearly selfish, unreliable, untrustworthy and unfit.

Let me make it clear at the onset, that no surviving parent following the death of the legal custodial parent can automatically have custody of their children, because the Children (Guardianship and Custody) Act provides in its sections 3, 4 and 5, all particulars about such situations and for the appointment of legal guardians of children by both or either parent.

Section 3 (1) and (2) make it clear that the surviving parent shall be the guardian of the children either alone or jointly with an appointed guardian or guardians, but that this is subject to the provisions of the Act.   Part of the provisions the father in this situation would be subject to, are that such an appointed guardian can apply to the court to object to him being guardian of the children jointly, on the ground that he is unfit to have custody, and by evidence prove his unsuitability. If the court is satisfied on such evidence, it would make an order for the appointed guardian to be the sole guardian, and to have legal custody of the children and care and control, and shall also order the father to pay to the guardian such sums for their maintenance as the judge considers just, bearing in mind the financial situation of the father and the needs of the children.

The court would also consider making an order for the father to have access to his children, and the judge would, in such circumstances, give him a very stern lecture about his duty and obligation to his children, and why he must obey the orders of the court or suffer the consequences of disobedience.

The Act also provides in Section 4 (1) and (2) that either the father of the mother  may by a deed or by their will, appoint any person to be the guardian of their child or children after their death or incapacity, as you are thinking of doing, which is a very good idea and good planning.  You should therefore retain the services of a good family/children’s law attorney-at-law to assist you to prepare your appointment of your sister as your children’s sole legal guardian and legal custodian, and for her to have care and control of them.

Your sister must be clearly identified by her correct names and her occupation, address, and all and any required detail must be stated in your appointing deed or will.

I usually suggest that mothers in your position, with the kind of father you have described, should appoint their guardian by a deed of appointment of guardian, and also make your last will and testament, and in that refer to the fact that you have appointed a guardian for your children by a deed (which is stamped and recorded stating the date and number).  Or say it is in the custody of whoever (state full name and contact details).  The usual will be that the appointed guardian acts jointly with the survivor parent, but remember, subject to the provisions of the Act!!

You see, in this way you make assurances doubly sure because once you have a clear appointment of your sister as such an appointed guardian, if he wants to push for his position as the children’s father, or even if he does not push, she has the authority to apply to the Family or Supreme Court for orders to prevent him from getting custody of the children, and for your sister to be the sole guardian and have legal custody and care and control of the children, and further that the father contributes to their maintenance, as I have already mentioned above.

Her reason for such an application must be that he is unfit, and give details in her affidavit in support of her application, and that it would be contrary to the children’s best interests for him to be a joint guardian of the children.

I hope your sister is strong-willed and confident because she will bear the burden of making sure to keep this man away from being a joint legal guardian and custodian of his children jointly with her.   Your sister in her application could agree that he should have access to the children, and consider whether supervised access would not be more appropriate for such a man, and so seek this from the court.   You and she must remember that in the court’s consideration of the evidence and all the issues in your sister’s application, it must ensure for the children’s welfare to apply, and act on the principle of what is in the best interests of the children.

Your sister as your appointed guardian, pursuant to Section 3(2) of the Act, shall like others so appointed, have powers over the estate and person of the children as such guardians have who are appointed by deed or will in England.  This just means that she will be trustee of any properties you leave and administer them for their benefit. She will also have authority over their persons as they grow, as parents do, to assist and direct their movements and conducts, arrange where they live, and advise and arrange their lives.

I hope that I have made you realise that not only can you appoint your sister as the legal guardian of your children, but that the Act which deals with guardianships of children, among other things, gives you the legal authority to do so by a deed and /or your will.  Though your appointment cannot erase the children’s father’s right to custody, it would be joint with her, until she applies to the court for orders to cancel his surviving parental right  to custody by proving that he is unfit and he would behave in manners contrary to their welfare and best interests.

So please go ahead and have your lawyer prepare the deed of appointment of a guardian for both children, and also your will, and including the same in it.  This act would definitely secure that you children will be in the safe custody of your sister, if you pre-decease her, or become incapable to care for them yourself.

All the very best to you and your children.

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.