Sherry-Ann McGregor, Contributor
IN MANY societies, including our own, grandparents often assume the role of parents to their grandchildren. In some cases, they volunteer as caregivers to the grandchildren, thereby relieving parents of some of the usual parental responsibilities. However, it is also quite common for grandparents to have exclusive responsibility for raising their grandchildren when the parents have abdicated the responsibility to do so.
In this article, I will explore the special relationship between grandparents and grandchildren and what legal rights they have to be involved in the lives of their grandchildren.
THE LAW
While the Children (Custody and Guardianship) Act successfully levelled the playing field between a child's mother and father to ensure that each one has an equal right to apply for custody of the children, it makes absolutely no mention of grandparents. Therefore, it may be safe to conclude that the law makes no provision for grandparents to simply apply for custody of their grandchildren.
Many grandparents may wonder why this is so, when they may be called upon to maintain their grandchildren. The obligation is reinforced by the Maintenance Act, 2005, which has been passed but is yet to take effect. In particular, section 8 of that Act states that every parent is obliged to maintain unmarried minor children or such adult children who are in need of maintenance by reason of physical or mental infirmity. It goes on to provide for this obligation to shift to grandparents where the parents fail to do so owing to death or physical or mental infirmity.
It should be noted that there is reciprocity in this regard, because grandchildren may also be liable to maintain their grandparents if the children of those grandparents cannot fulfil this obligation due to death or physical or mental infirmity.
Jamaica's existing laws, therefore, provide for grandparents to assume financial responsibility for their grandchildren in certain limited circumstances, but it does not go so far as to impose an obligation to assume custody of those children. In fact, it does not even provide for a grandparent to assert visitation rights. However, where that grandparent has cared for and borne all expenses for a child whose parents failed to fulfil their parental duties, the court may refuse to award custody to the parents unless they prove that they are fit and proper persons to secure the welfare of that child.
OTHER JURISDICTIONS
It is always interesting to compare our laws with those of other jurisdictions. For example, in the United States, all 50 states enacted laws to allow grandparents to visit grandchildren. Some of these laws date back to the 1970s. However, recent cases reveal that courts are cautious about granting orders which support grandparents' rights which are opposed to parents' wishes. In fact, there appears to be renewed acceptance of parents' rights to raise their children in the manner which best suits them in states such as Washington and Florida.
It may well be that our legislators have already decided against granting special rights to grandparents, or it could be that it has not been contemplated. In either case, given the present state of the law, the words of one writer ring true, "The best chance grandparents have of having a good relationship with their grandchildren is to have a good relationship with the children's parents."
Sherry-Ann McGregor is partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
