Dear Mrs Macaulay,
My mom passed away in May of last year and I have two sisters, aged 21 and nine. I would like to petition for my little sister to come and live with me here in the USA, considering that she's now living with my grandfather and he's getting very old. But everybody keeps telling me that it's going to take long. I was wondering if I became her legal guardian, if that would speed the process up a bit faster.
You have not stated whether you are a sister or brother, or your age, status and the circumstances of your life. These are all relevant to the question of whether you are a fit and proper person to be the guardian of, have custody of, have care of, and to finally adopt your sister. You have also not stated what happened to her parents and whether they are yours also. I am left to assume that either they are both deceased or her father was not in the picture and her mother is deceased or vice-versa, and her grandfather had to take over her care and control.
Your grandfather is clearly the person with de facto care and control of her. It is obvious that something must be done to ensure a stable home and upbringing for your younger sibling and it is good of you to wish to take on this responsibility.
Let me then go straight to your enquiries.
Yes, you can apply to be your sister's legal guardian, but you must also apply for legal custody, care and control of her. You see, a person can be the legal guardian of a child without having custody of the child or the right to have them in their daily care. I suggest therefore that you apply to be appointed as her legal guardian and for orders that you have sole legal custody, care and control. Your application would be against your grandfather — as he has had and still has de facto custody and care and control of her — as well as whichever parent is still alive. Therefore, your grandfather and such a parent would be the defendants to your claim for all the orders I have suggested, and the appointment of you as guardian, if you insist on the latter. It is not really necessary if you apply for and obtain legal custody and care and control. The application should be filed in the Supreme Court and an affidavit of urgency could be filed at the time of the other filing if your grandfather's situation makes it necessary for the earliest appropriate hearing date to be fixed.
Once you have legal custody and care and control, you have the right to make all decisions — including where she should live and with whom throughout the years of her minority. Care and control means that she can live with you and you are responsible to care for her and provide all her necessities.
With the above orders, the appointment of you as a guardian would be an addition which makes some people feel more assured of their position and responsibilities. Your grandfather would be the first defendant named in your action as the person in actual charge of your younger sister, and any living parent must be the second defendant for the court to be sure of their position vis-a-vis the child.
I hope you know where such a parent is, as this would make service of your application on him or her easier. If not, then do not despair — you can, at the time of filing your substantive claim for sole legal custody and care and control, also file an application for orders to dispense with personal service on the parent and for substituted service by way of advertisement in a popular daily newspaper and/or service upon a near relative of the parent who is expected to be in touch and can notify and deliver to him or her a copy of your application.
You must, of course, retain a lawyer to act on your behalf and assist your grandfather with this, as well for a quick resolution of the matter.
You can also apply to adopt your sister after you have obtained the orders for legal custody, care and control of her. This you can discuss with your lawyer and obtain his or her advice and then decide.
After this, you can move ahead and secure the orders necessary to obtain the legal authority and status in her life, to enable you to apply to US immigration to have your sister obtain a visa to reside with you there.
I wish you both success and the very best 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 email@example.com; 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.