Aunt wants guardianship

Dear Mrs Macaulay,

I live in New York, but have family in Treasure Beach. I am interested in finding out more about the guardianship process, as I feel it might be an option for us.

I have a nephew there who will be 15 years old on October 14th. He is very sick due to Type 1 diabetes. I’d like to obtain custody of him and get him to the States as quickly as possible.

There are also two other relatives I would like to obtain custody of, that do not have urgent health needs. One of those children is the younger sibling of the nephew mentioned above, and the other is his nephew (older sister’s son). They all live in the same home. I’m trying to figure out the best and quickest way to go about obtaining custody and bringing them to the US. Also, none of the children have visas. Any information and advice you have to offer would be greatly appreciated. Thank you in advance for your time.

The legislation which applies to guardianship and custody of children in Jamaica is the Children (Guardianship and Custody) Act. You say that you wish to find out more of the guardianship process as this you feel would be the best option for you all. You did not say with whom the children live currently. You have also not stated whether the parents of the two children who are siblings are still alive, and what happened to those for the third child. It would be of great assistance if the parents consent and agree with all your plans for these children and that they have good and acceptable reasons for their children to be in the care of another family member.

Since all three children live in the same home, this is a positive point towards a judge concluding the consideration of your application in your favour, as this would mean the continuity of how they have hitherto lived. This would certainly be in their best interests as their sense of stability from living together would continue.

The first thing you must do is obtain certified copies of their birth certificates. Please get more than one for each child as you would need to have one original certified copy for each stage in the processes. The first will be for your applications to the Supreme Court. As your nephew with diabetes is now 15 years of age, I suggest that you obtain the services of an attorney-at-law experienced in family law to start preparing your application for you to be appointed the guardian and to be granted sole legal custody of him and the two other children. All your applications relating to all three can be prepared and filed at the same time in the Supreme Court. The application for the 15 year old, I would suggest that it should also be supported by an affidavit of urgency. This is so that your application about him would be given an earlier date than normal. This is to ensure that you will have sufficient time to be appointed as his guardian with the order for you to have sole legal custody and care and control of him to proceed as quickly as you can to obtain the necessary immigration visa/ permission for him to travel to the USA and to reside with you in New York, where you can take care of him more consistently.

You must have all your arrangements for him and the others fixed, as you must have in your affidavit in support of your applications, information of your home’s address, who lives there with you, proof of sufficient rooms to accommodate him and the others, the school(s) they would attend, information of their religious upbringing there and its continuity, etcetera. You have to prove that you are in a position to maintain all of them; the provision you have made for their health services and details of their health situation, and of whatever disease they have, or not, and any other relevant fact about what their lives with you would be. The court must be satisfied that appointing you their guardian and giving you sole legal custody and care and control of these three children would be in their best interests.

The appointment of guardianship does not necessarily give the guardian the legal capacity to have the child or children in their daily care, unless further orders are applied for. This is why you should also obtain an order for their custody which gives you the authority to make all important decisions about their upbringing. The order for you to have care and control of them enables you to have them living with you, and gives you the responsibility for their daily care. You should indeed apply for guardianship, sole legal custody and care and control of all three children, and with these made in your favour, you shall have the sole right to decide about the lives they live, which should always be in their best interests, and you shall bear the full obligations to provide for them and to take care of them properly and in their best interests.

In fact under the Act, the father and or the mother of a child can by a deed or their last will and testament, appoint a person to be the guardian of their child after their death and such a deed properly done and executed shall have legal effect after their death. If there’s one parent remaining, when they have jointly appointed a guardian, then the guardian and the surviving parent can act jointly in caring for the child as the deed directs. A guardian needs not have daily care of the child. The duties may be just supervisory of the acts of the person with custody and care and control or the guardian’s responsibility may be only for the financial provision for the child’s needs from a fund placed in his or her care for the purpose. Such a guardian has to bear the heavy burden of accounting for the expenditures made from the said fund.

So I must applaud your plan for these children and I sincerely hope that you can move as quickly as you can to apply for and obtain the orders of the Supreme Court for guardianship and sole legal custody and care and control in relation to these three children.

The three applications can be filed at the same time and your attorney can seek their fixture for hearing on the same day, one after the other. Remember the need to file an Affidavit of Urgency also. With these orders in your hand you would be in a position to apply for their visas to travel to and reside with you in New York. I expect these may be green cards, but I have no real knowledge about such processes. This you must obtain from the US authorities.

I hope that I have clarified the position for you. It is now up to you to move as quickly as you can. Remember you diabetic nephew is already 15, and you must complete all processes for him before his 18th birthday.

I wish you all the very best and success with all your applications and all the arrangements you must make and have in place.

Margarette May Macaulay is an attorney-atlaw, 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.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.