Dear Mrs Macaulay,
My husband's sister died three years ago, leaving a child. The child's father also died recently and the child has since been living with her grandmother, my mother-in-law. However, she is unable to care for the child any longer. I want to get guardianship of the child with my husband as he is the uncle. How do we go about that?
Applying for legal guardianship is pretty straightforward, but it requires orders of the Supreme Court. Since your mother-in-law can no longer take care of the child, I hope that you and your husband have been assuming care and control of her, and are providing and caring for her in your home. I say this because I assume that you and your husband want more than a guardianship order simpliciter.
A guardian can in fact and in law be just that — guardian simpliciter — without having actual custody or care and control of the child. He or she as guardian can merely be responsible for making development decisions for the child's upbringing and managing the child's finances and provision for living expenses.
On the other hand, a guardian or guardians can also be in fact and in law entrusted with the above responsibilities plus that of having legal custody and care and control of the child. This is what I believe you are referring to, as the child also needs a home and someone to have physical custody and the obligation for day-to-day care and provision.
What should you and your husband do to become the child's full and complete guardians? You must obtain the services of a family law lawyer to assist you and guide you through the processing of your application to the Supreme Court.
You will need the child's certified birth certificate and the certified death certificates of the deceased parents, which should be exhibited in your joint affidavit in support of your application. Your mother-in-law should also have an affidavit prepared and filed in support of your application, which would relate how she came to have her grandchild in her care and why she can no longer care for the child, and that you and her son have had to take on the responsibility of care and providing for the child, which is in her best interests. Your mother-in-law can also include what she knows of your characters and capacities to care for the child.
In your joint affidavit with your husband, you need to relate the facts of the deaths of the child's parents, your relationships with the child, that is, as her uncle and aunt-in-law, and that the child formerly lived with her grandmother but now resides with you both, as continuing to provide such care is now difficult for the grandmother.
You should then include facts relating to the child's school, grade, religious education, good health, or if she is suffering from some medical condition, you would need to explain what that is, and how the child's expenses are being met. Then you should add concisely a description of your home and the space/facilities you have there for the child.
I have suggested that you apply for legal guardianship, custody, care and control of the child, so that the order with all this will make it abundantly clear, without explanations ever being necessary, to anyone or authority, that you and your husband are not only the child's guardians in the limited legal manner I first referred to, but that you also have legal custody and care and control of the said child — that you are fully and completely in charge of the child.
If you later wish to apply for adoption, this will assist you with the process. It will also be useful if you ever wish to travel abroad with the child to certain countries that have some stringent requirements regarding even a biological parent travelling with a child.
I trust I have clarified the process for you, and I wish you and your husband the very best with the child you are planning to assist. I hope that you will all have a happy and rewarding future 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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.