A Question of Guardianship – Jamaica Observer

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Dear Mrs. Macaulay,

I have a question regarding guardianship of my friend’s daughter. He was recently murdered, leaving his two-year-old daughter in the care of her mother who does not work and has other children to take care of. I helped her financially and I wonder if it would be possible to become the guardian of the little girl. The mother has been sick lately and the question arose as to what would happen to her children if something happened to her. I do not reside in Jamaica but was wondering if it was possible to be listed as a tutor.

I assume you were a close friend of the deceased father and the child knows you even though he did not have a close relationship with you. I am certain that your financial assistance benefits the child, the mother and her half-siblings. However, it seems to me that this child needs more than financial help. It’s clear that with an unemployed and sick mother, she needs more than a financial benefactor from afar. It would be a huge benefit for the child if you could visit here periodically and have the child stay with you while you are here and establish a personal relationship with her and really decide what you wish to do for her ultimately.

You say you want to be his guardian but you didn’t say what kind of guardian. Are you just going to be the one to take on the financial responsibility for the child while you stay away, or are you going to be the one to take on the financial burden with the custody, care, and control of the child?

There are different forms of guardianship; the ones that seem to be relevant to the few facts you have stated about his situation are the two that I mentioned above. The former only provides financial support to the child, which is limited guardianship. Then there’s the second, which is the one usually ordered by the courts here, in which you have full legal custody and care and control of the child. The latter would allow you to make all important decisions for the upbringing and development of the child and with care and control, you are also responsible for his daily care. You have to decide what you really want to do for the child.

You will not be “listed” as his guardian as this is a legal position to which you must be appointed. The mother could appoint you guardian of the child by a duly signed act, in which the type of guardian you should be would be described in detail or, as is most often done, an application is made to the court – this is i.e. the Supreme Court of Justice of Jamaica and not the Family Court – as you are not a biological parent of the child.

The first thing you should do after deciding on the type of guardianship you want is to discuss your interests with the mother and if she agrees you should retain the services of a lawyer to prepare and accompany you in the request until you get the court order. If you decide and apply for guardianship, sole legal custody and care and control and it is granted, you can, as has been done so often, obtain the necessary visa for the child to travel and live with you. From my experience, I see no reason why you should not be successful in your application.

I think this is a very admirable thing that you are doing and want to do for this child and I hope I have made you see more clearly the position of a guardian and how you can be a practical guardian. But whatever you decide, talk to the mother and clearly explain your intention and get her consent, then proceed as I suggest. I wish you all the best in the hope that you legally become his caregiver in the way you see fit and his mother accepts.

Margarette May Macaulay is a lawyer, Supreme Court mediator, notary public, and advocate for women’s and children’s rights. Email your questions to [email protected]; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Ms. Macaulay cannot provide personal answers.

WARNING:

The content of this article is provided for informational purposes only and should not be considered as an alternative to legal advice from your own attorney.

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