Dear Mrs Macaulay,
I have a son who is seven years old. The child's biological father was never interested in him from I was pregnant, until now. My son is not registered in his biological father's name but in the name of another person (a close friend at the time). He knows that he is not the child's biological father but he was willing to play the role. He is still a wonderful father to my child and he is very supportive. My son is also an only child. Now the biological father has returned and decided that I was very wicked not to register the child in his name. He has stated repeatedly that he is willing to petition the court for his son. I want to do what is best for all persons concerned but I don't know what to do. I need your advice.
What a pity you did what you did and yet what a blessing, as you seem to have chosen a real treasure of a father for your son. When I say it is a pity, it is because you made a false declaration when you could have left that part for father's name blank.
I can understand why you did what you did but this was clearly untrue and a false statement knowingly and intentionally made, for which a person can be charged, and if guilty, fined. It is perjury if the false statement was knowingly made on oath and with the intention to deceive.
It may have been better to leave father's name out completely and still have the wonderful friend who has been a real father to your child act in this capacity without registering his name as the father of the child.
You say the biological father was never interested in your son from the time of your pregnancy. This, I assume, means that he abandoned you and the child but that he has returned seven years later and is judging you adversely for finding a father for your child. He really is cheeky to conclude that you are wicked. What of his act of abandonment even before the child was born and for a period of seven long years? He really has no moral ground to stand on.
You say that your son is an only child but you did not say whether this refers to the biological father, or to you, or to the registered 'good' father. I suspect if it applies to the biological father and he cannot have any other children, this is probably the reason why he has reappeared. You also say that he has stated repeatedly that he is willing to petition the court. Well, why has he not done so? Other fathers have who are serious about assuming their responsibilities and rights as fathers.
You have not mentioned whether he has done anything of a fatherly nature with and for his son. I believe that if he had, you would have mentioned it. Fatherhood is not just a name on a birth certificate because of the implantation of sperm -- yes rights come with it, but so do responsibilities. What is absolutely vital in my view is that the parent does what is in the best interests of the child by protecting, providing for, and nurturing the child so that he develops into a well rounded, responsible, honest, productive and courteous citizen.
You say you want to do what is best for all persons concerned, however, in this regard, you child's best interest is of the highest priority. It precedes yours, his biological father's, and his registered and performing father.
So what should you do? Well it seems to me that you owe it to your son to make sure that this man who has now turned up is sincere about being a father and that he will not again disappear from your son's life after the child comes to know him as his blood father. So you have to assess his words and actions to answer to these questions: Is he serious about being a father to your child? Will he be a responsible, caring and supportive parent? Will he accept that the registered and active father cannot just disappear from your child's life? Or will he continue with his selfish and self-interested conduct?
What can be done in these circumstances? You can go with the father's wish and take steps to change your son's father's name on his birth certificate; or, this man, the biological father, can, if he is truly unselfish, do a solemn declaration on oath that he is the child's biological father but hold it and then work to develop and have a real father and son relationship with his son, and only when your son is comfortable with him and the truth of his status has been carefully disclosed to the child, only then should you both act with the concurrence of the registered father, to rectify the birth register.
The Status of Children Act provides that if in conjunction with the provisions of Section 19 of the Registration of (Births and Deaths) Act the name of the father of the child has been entered in the Register of Births, then a certified copy of the entry is prima facie evidence that the person named as the father is the father of the child. A document to this effect is also signed by the mother or the father acknowledging that he is the father of the child when it is done as a deed or signed before certain listed persons, for example a Justice of the Peace or attorney-at-law.
Your friendly 'father' who is on the register and who has been fulfilling the role of father is the prima facie father of the child. That is to say, he is the father for all purposes until the entry is corrected by a court's declaration of paternity that another person is in fact the father of the child.
In the course of a proceeding for a declaration of paternity under the Status of Children Act, the court may give directions for tests to be done and the report will be evidence in the case. The test should, however, only be done if you consent as your child is under 16 years of age. If he is 16, then he can consent himself.
If you do not consent, the judge can consider the fact of your refusal to consent to the test being done in a way which is adverse to your interests. In other words, the judge would decide against you and so make the declaration of paternity in favour of the applicant parent.
So what is best for all concerned? I have pointed out that the parents must put their own interests after that of the child. So leave the biological father to make his application for a declaration of paternity, do not do it for him. Let him act responsibly himself if he is serious. I am not saying you should not accommodate him as a father, but all of you have to prepare your child to accept him in the role of his father. It will be emotionally confusing and traumatic for your son to discover that the father he knows is not in fact his father. You should therefore consider utilising the professional services of a child psychologist, at the "returned father's" expense, so that it will be done in such a way that any adverse effect will be minimal for your child.
He should pay, because even if his name had been put on your son's birth certificate without his knowledge, because of his abandonment, he would be a complete stranger to the child and such services would also be needed to avoid serious trauma being experienced by your child.
So you adults should, with professional assistance, bit by bit introduce your child to the situation, but, whatever you do, do not remove the father he knows from the picture even if paternity is declared to be for the returned biological father. The continuation of the existing relationship will be a necessary buffer and anchor for him.
If these men, but especially the biological father, act maturely and responsibly, he can in fact have two fathers. So continue as you are and get the professional advice and help I have suggested to tell your child about it, so that he can deal with it without too much shock, and if and when the biological father gets his declaration of paternity, the change will not adversely affect him.
Good luck to you.
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. Mrs Macaulay cannot give personal advice.
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.