Jamaica Gleaner
Published: Monday | July 6, 2009
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Laws of Eve - Appointment of testamentary guardian?

Sherry-Ann McGregor - Contributed

While the world continues to mourn Michael Jackson's sudden passing, the courts are already abuzz with the several applications which have been made in respect of his will and the custody/guardianship of his children.

According to the media reports, the children's paternal grandmother, Katherine Jackson, has been appointed interim guardian by the courts. She is also named as the guardian under the will, with Diana Ross as her successor.

Recent media reports have also said that the children's biological mother, Debbie Rowe, intends to challenge Katherine's appointment. Whether Michael's wishes will be upheld by the court remains to be seen.

Guardianship and Custody

If these events were unfolding in Jamaica, what would be the law? The answer lies in the provisions of the Children (Guardianship and Custody) Act ('the act').

1. Section 4 of the act, states that the mother or father of a child may appoint any person by deed or will to be the mother or father of that child after his or her death. The guardian appointed shall act jointly with the surviving parent.

Therefore, Michael's mother would be recognised under Jamaican law and act jointly with Debbie Rowe.

2. The guardian appointed under the will or deed may apply to the court to become the sole guardian of the child/children if he/she believes that the surviving parent is unfit to have custody of the child/children.

Katherine could argue that she is entitled to be the children's sole guardian on the grounds that Debbie Rowe is unfit to have custody of the children.

3. Section 8 of the act states that the court may remove a testamentary guardian from his or her office if it is satisfied that it is necessary to do so for the welfare of the child/children. If such an application is successful, the court may appoint a new guardian in place of the one who has been removed.

In Jamaica, Rowe, as the biological mother of the children, could apply to the court to remove Katherine as the children's guardian. However, to succeed on such an application, she would need to show that it would be in the best interest of the children.

This situation has been deliberately oversimplified, because the question as to whether Rowe still has the rights of a biological mother would also need to be answered, since she may have relinquished that right several years ago.

It is expected that the court considering the various applications will place emphasis on their welfare as the paramount consideration and make the most appropriate decision.

Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Questions and comments may be sent to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.

Michael Jackson and his mother Katherine. - FILE

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