Legal guardianship hold-up after parents abandon child

All Woman

DEAR MRS MACAULAY,
I've had a child in my custody over two years now. I am her sole provider since the death of her guardian. The mother and father want nothing to do with her. I have been seeking legal guardianship through the Family Court but without success. The father, mother and myself have been to the court on several occasions but the father denies paternity and refuses to do a DNA test. The mother is not in a position to care for the child and does not even want to see her. The mother and father have now disappeared and I do not know where to find them. I want to adopt this child. What do I do? The Family Court is saying that I have to find the parents.

I need your help.

It seems to me that you have had de facto custody, care and control of the child for over two years, since the death of her guardian. What I understand from this is that this child had been in the care of another person and you assumed this position following the death of that person. You have not stated whether the deceased guardian was appointed by both or either parent or by a court. You did not say how long this person was the guardian of the child. One thing which is clear is that the parents of this child gave up their custody and the care and control to another person and then acquiesced with you taking over the role of de facto guardian.

I am not sure why you applied for legal guardianship in the Family Court and did not apply instead for legal custody and care and control of the child. As you have not said that you are a grandparent of the child, I am surprised that the application they assisted you to make in the Family Court was for guardianship and not legal custody, care and control, as I have mentioned.

For the application you made for guardianship, not being a grandparent, you should have applied to the Supreme Court which apart from being able to act pursuant to the legal provisions and to apply the correct principles, can act under its inherent jurisdiction to ensure that it makes orders necessary for the welfare and best interests of the child. You still can, and since the Family Court has frustrated your efforts to put your relationship and responsibility for the child on a legal basis, you ought to consider making your application to the Supreme Court which has wider powers than the Family Court.

I am also concerned about your statement that the father and mother were in attendance during some of the appearances you made in the Family Court, and the judge in the factual circumstances of the parents, who had clearly abandoned and deserted their child, did not act and apply the provision in section 18 of the Children (Guardianship and Custody) Act, which sets out the principle and direction that in any proceeding before any court for custody or upbringing of a child, the court, “SHALL regard the welfare of the child as the first and paramount consideration”.

If this principle was applied and acted upon, the court ought to have directed either a substitution of your application for guardianship to that for legal custody, care and control of the child, or could have acted under section 4(4) of the Act made an order that the parents are unfit to have custody of the child and made an order for you to be the sole guardian of the child.

The fact that the father disputes paternity and refused to do a DNA ought not to have barred further action by the court, having regard to the welfare of the child. When the father made clear that he was not going to do a DNA test, the court acting pursuant to section 13 of the Status of Children Act could draw whatever inferences appeared proper to the judge from such a refusal. That is to say, the judge could conclude that the father refused because he knew he was the father and did not want to be conclusively proved to be so. In such circumstances, the court should have gone on to make the appropriate orders to ensure the welfare and best interests of the child.

The fact that the parents have now disappeared should not impede you proceeding with your application, as the court has power to order you to put advertisements in a specified popular daily newspaper to alert them of your intentions. Upon your production of the published newspaper advertisements to the court, and if the parents do not appear in court on the date specified in the advert, the proceedings can continue to the making of the order in your favour, so that you have sole legal custody, care and control of the child and can thereby provide the child with certainty and security in her life.

You must retain a lawyer to assist you and ensure that whether in the Supreme Court or in the Family Court, the correct and appropriate applications are filed.

You can, of course, apply to adopt the child through the Adoption Board at the Child Protection and Family Services Agency. You can go and speak with them and tell them what you have done and how the mother and father seem to have disappeared. This process also uses advertisements when necessary.

I do however feel strongly that you ought to pursue your application and obtain legal orders for custody, care and control of the child, as being in the present limbo situation, you cannot make any decisions for the child's welfare urgently — for example, giving consent for a medical procedure to be performed for a health problem. So please get a lawyer to assist you with the applications in court and then you can apply to adopt the child.

I hope that I have clarified the matter for you and that you will act with all dispatch to obtain the necessary court orders and then proceed with your application to adopt the child.

I commend you for your interest in caring and protecting the interest of this child and I wish you both success in your applications and a happy life together.

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.

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.

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