Mom wants to give up custody
Dear Mrs Macaulay,
I am inquiring about the process for transferring full custody of my daughter to my sister, who resides in the United States. 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. Additionally, I would appreciate any advice or recommendations you may have to ensure a smooth and legally sound transition for my daughter’s custody. 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 important your decision is to grant full legal custody of your child to your sister and that you are determined to pursue the proper legal provisions and procedures to achieve the very best for your child.
I must first mention certain matters of fact which you did not mention. 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 she if agrees with it. You didn’t state whether she knows her aunt and has a good relationship with her.
The second is that you made no mention of her father, whether he is still alive, and if so, the relationship, if any, he had or has with his child. If you have none of these facts, you must clearly say so, and when you lost contact with him. These facts about the father are necessary 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 she must play the lead role to obtain full legal custody of your daughter.
My firm suggestion is that an application must be made to the Supreme Court by your sister to be granted sole legal custody
(and care and control) of your daughter. This is the most direct and 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 in the United States.
So you must obtain your sister’s and your daughter’s agreement to the plans being made. The child’s opinion must be sought and stated for the court hearing the custody application, as long as she is old enough to understand the issues. This is provided for in the Child Care and Protection Act.
All of you must understand the legal provisions which apply to matters of this kind. The result would be that your child would have to leave the home she knows, to live with her aunt who would make all important decisions about her life instead of you, and act as you, her mother, used to do for her.
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 interest, your sister will have to state what orders she seeks, and that she, the aunt, would be responsible for her niece’s daily care.
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, and agree wholeheartedly that this is in the best interests of your daughter.
You will need a certified copy of your daughter’s birth certificate exhibited to your sister’s affidavit in support of her application. She must relate the facts of your relationship (the judge might require proof that you and she are in fact sisters).
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 being brought up by her 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. 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. You cannot just ignore the father because you both have equal rights to apply for custody of your child, and regarding any other matter affecting the 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 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. 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 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.