RESEARCH has shown that at least 75 per cent of households in Jamaica contain a common-law relationship and/or blended family. Research has also shown that women are the main contributors to a blended family, whereby they bring a child into a relationship who is not the biological child of their partner. Research and the Family Court (hereinafter ‘the Court’) records have shown that a large percentage of these women in blended families are more likely to take the stepfather to the Court for maintenance. Therefore, I will focus on stepfathers for the purpose of this article.

The Property (Rights of Spouses) Act, 2004 defines ‘common law’ as a man and a woman living together for not less than five years. This relationship often results in a step-parent relationship. A stepfather relationship is created when a common-law spouse brings into the relationship a child who is not the biological child of the man.

Many common-law relationships are created from broken homes. This occurs when a woman has a child or children with a man, later separates from him, then enters a new relationship with another man and lives with him for no less than five years. This often results in the man taking care of the child or children in a father role, rearing and supporting children who are not his biologically. To make financial ends meet, some men abandon supporting their own children, while others try to support both. This type of relationship can also occur by way of adoption or when the biological father of the child dies and the common-law spouse accepts the role of stepfather.

How do I know if I am a step-parent?

Legally, a step-parent is someone who must:

1) accept the child as a member of his or her family; and

2) assume full or partial responsibility for the child’s maintenance.

Therefore, the question in law is, does a stepfather who does not accept the child as a member of his family or assume responsibility for the child’s maintenance have an obligation to maintain that child? The short answer is no.

When the biological father is not maintaining the child, and the mother is now in a common-law relationship with another man, does the law recognise him as a stepfather? If he has accepted the child as a member of his family and has assumed full or partial responsibility for the child’s maintenance, then yes.

However, if the woman’s common-law spouse has expressed that he is not willing to take on that responsibility but will help when he can, the woman cannot force him to provide for or treat that child as if that child were his biological child. The mother should ensure that the child’s biological father is held accountable to maintain that child. When the child’s biological parent has abandoned the child or is dead and the common-law parent has accepted the child and assumed responsibility, that parent will have an obligation under The Maintenance Act, 2005 to maintain the child up to the age of 18 years or 23 where applicable.

Separation

The law provides for the common-law spouse to make an application for maintenance within 12 months of separation. If the woman marries or is cohabiting with someone else after separation, there is no obligation to pay her maintenance under the Maintenance Act. Therefore, the common-law spouse should seek to make an application to have the order varied or stopped. However, there may be an obligation for the ex-common-law spouse to continue to maintain the child as his stepchild.

When the woman enters a new relationship after separation and is cohabiting with someone else, and that new partner is now maintaining the child, the step-parent of the previous relationship who was ordered to pay for child support can seek to have the order set aside or amended — if it can be proven that the new spouse is now maintaining the child. However, the Court generally considers what is in the best interest of the child.

Additionally, if the child is attending university or has been accepted to university, and the mother can show evidence of this to the Court, the Court can order child support to continue until 23 years. the Court’s social service officers will be asked by the Court to determine affordability, and this is usually assessed by means test.

Extended Responsibility

When a stepfather has adopted a child and the couple then separates, the stepfather must continue to maintain the child. The Maintenance Act, 2005 allows the mother to seek an order for maintenance for child support of the adopted child. In this, the Court will consider:

1) apporting the obligation according to the capacities of the parents to provide support;

2) paying for maintenance or education of a child who has been accepted by that common-law spouse as a child of the family; and

3) making an award for the payment of a sum of money for expenses in respect of the child’s prenatal care and birth.

Adoption

When a common-law spouse wishes to make the child legally a child of the union, then an application can be made for consideration to be given for adoption, once the child is over six weeks and under 18 years old. The step-parent must be aware that the birth parents must agree by giving their consent to adopt, unless:

• they are dead, with a death certificate as evidence

• children are wards of the State

• they cannot be found and there is evidence of attempts made to locate them (eg, newspaper advertisement)

• they are otherwise incapable of giving consent (eg, because of mental disability [with supporting evidence]).

Recommendations

A stepfather should:

1) encourage his spouse to apply for maintenance from the biological parent in the Court

2) have a document prepared expressing the terms of parenting with common-law spouse for a child not of the common-law union

3) have a clear understanding of the arrangement with common-law spouse regarding maintenance from the child’s biological father

4) consider adoption if he can afford responsibility for his stepchild until 18 years or beyond (if applicable).

Venice Williams

partner/attorney-at-law with

Lewis, Smith, Williams & Company

Email: vwilliams@lswlegal.com