Adoption, guardianship and an uninterested biological father

Margarette MACAULAY

Sunday, March 12, 2017

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Dear Mrs Macaulay,


I’ve been a single parent since the conception of my now two-year-old daughter. Her father shows no interest in her and did not sign her birth certificate. I have made contact with him on numerous occasions to rectify this, to no avail. I know that he is the father, but by law I am not sure if legally he is her father, even though she has his last name. Her birth certificate has my name only.



I am now engaged to a man who is desirous of being her father. I am unsure of the legal proceedings of adoption, which is what my fiancé wants to do. I am also considering taking the legal guardianship approach as well, because I do not want any confusion later on as it relates to her biological father. Please advise.





You say that you know that this man is the father of your child, but he has clearly refused to acknowledge this as a fact. His conduct has made it clear that he has no interest in fathering your child. The fact that you gave the child his surname neither shows that he is, nor makes him in law her father, and in any event, only your name appears on her birth certificate.


As your husband-to-be wishes to adopt your daughter, you can proceed in one of three ways:


1. First, you could apply to the Supreme Court with the biological father as the defendant for a declaration of paternity, and for joint legal custody to you and you husband-to-be on the ground that the biological father has abandoned and deserted his child and he is unfit to have any access. The application must be served on the defendant biological father, so that an order for a DNA test can be made if he denies paternity. You may also ask for an order that he signs all necessary documents evidencing his consent for your ‘husband’ to adopt your child. If the DNA results show that the defendant is the father, the declaration of paternity will be made and also the orders that you have sought. The judge will make any other orders he or she considers is in the best interests of the child.


You can ask the defendant, after he is served with the application, whether he would sign a consent and all necessary documents for your husband-to-be to adopt the child. He may in all probability readily agree to do so, and you can then have a consent order. If he does not, then you can proceed with the court hearing and this may result in you getting all you have applied for, or there could be an order that he must play a fatherly role and have access and pay maintenance. In this instance, you can claim for him to refund one half of all your costs from the birth onwards to the date of the order. I am sure he would not wish to have all this legally ordered against him, but after the court makes a declaration of paternity, he would legally be recognised as the father of the child and be legally obligated.


2. You and your husband-to-be can apply for him to be appointed the child’s legal guardian and for him to have joint custody with you and also joint care and control of the child, or with care and control to only you. The biological father must, as I said, be named as the defendant and be served with the application. Your affidavit in support must relate all relevant facts of your relationship that resulted in your pregnancy and the defendant’s lack of interest and refusal to sign any document as the father at and after the birth, and each and every time you have asked him to do so. Then relate your relationship with your fiancé and his relationship with your daughter and his wish to adopt her with which you are in agreement.


Please note that for a declaration of paternity application, you should have two people who can, in affidavits in support, depone to the facts of your relationship with the defendant, based on their own knowledge of you both spending such time together as could have enabled you to have sexual contact resulting in your pregnancy.


3. The most direct means is for you to approach the biological father and ask him — since he has shown no interest in being a father to your child since birth — whether he would sign a consent for your husband-to-be to enable him to adopt the child and so free himself from all burdens which can legally be imposed on him as her father. He may very well readily agree, and so you could then more directly move with an application to the CDA/Adoption Board to adopt the child. If he refuses this direct approach and still decides to do nothing, then you can go by the first or second means.


I hope I have clarified the position for you. I wish you, your fiancé and your daughter a very happy future together as a family.



 





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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