Dear Mrs Macaulay,

I would like to know if I can add my surname to my child’s birth certificate. He currently has his father’s surname. My child is two years old and the father added his name at birth.

The father has not been an active co-parent and is not cooperative. Where issues of inheritance and migration come into play, I would not like my child to have any problems going forward for the future.

I understand what you are asking. I also understand the reasons why you are thinking of adding your surname to your child’s birth records, and to be evidenced on the birth certificate. You state that your son’s father provided his name to the registrar of births to whom the birth details were reported shortly after the birth, but you did not state whether the father had supplied to the registrar his full descriptive details when he supplied his name. More details are always better in this regard. However, the father gave his name, and this means that he admitted to the fact that the newly born child was his own, and so was entitled to bear his name and to expect that he would meet all the legal obligations of a father to his child in life and in death.

You have said nothing about filing an application in the Family Court against him for his failures in meeting his parental legal obligations to his child at least, and to seek to obtain the legal orders which your son is entitled to have for his support and proper development. Quite frankly, I do not appreciate your not doing what you should have done when your son’s father, by his lack of interest, made it clear that he was not going to meet his legal obligations as a father as the law provides. I am sorry to say that you are also failing your son by not making the applications which you should, to ensure his security and the contributions which his father ought to provide for him until he at least completes his academic studies or technical training. This you must do rather than worrying about the issues of inheritance and migration which you seem to think by the joinder of your surname would not be a problem. Where did you get such an idea? You can join your name as you wish, but that would not help your son with your two issues with regard to his father.

You son has his father’s name in his birth records and his birth certificate and has his surname. The dad is legally the father, and your son, in fact and in law, has the legal right to inherit or benefit from his father’s estate after his death. If the father dies intestate, the law specifies how his estate must be divided between his surviving relatives. If he dies testate and you had obtained maintenance orders for him to contribute to your son’s maintenance, and he dies and did not mention and give any bequest to his child of any part of his estate in his will, once your son is still under the age of majority or is still pursuing his education and not yet 23, you on his behalf, or he himself if he is over 18, can apply to the court for the executors of the will to be ordered to continue to provide his maintenance and depending on the size of the estate, additional sums may also be awarded by the court.

Let me be as clear as I can be for you and your son. You do not need your surname on your child’s birth records and certificate as his mother for the law and all persons to accept as a fact of nature and of the law that you are his mother, and that he has a right to benefit from your estate on your death. No one can question your maternity. The is the same case once the father’s name appears in his son’s birth records and certificate, especially when he himself provided this upon the report of the birth details to the registrar of birth at the hospital just after the child was born. His admission would stand unless he wishes to question his paternity, but even then, he would have to apply to the court for a declaration of paternity, with reasons for doing so, and then if the court accepts jurisdiction to hear such an application, it would have to order that a DNA test be made and only if this test proves that he is not the father, only then could the court make a declaration that he is not the father and then make an order for his name to be removed from the birth record and the birth certificate. This I however see as most unlikely to occur and whether for inheritance reasons or for migratory needs, your son’s father is a legal certainty.

What you must do, and I repeat, what you must do, is apply to the Family Court for your parish for the following:- an order in your favour for sole legal custody and care and control of your son (do not agree to any order for shared custody because of the father’s proven disinterest and un-involvement, as this will only cause problems when you have to make important decisions for the child’s development, education, medical treatment decisions, religion and residence). Care and control must also be yours alone, because your child shall reside with you and you shall be caring for him day to day. His father can have an order for periodic access to his son, maybe a weekend a fortnight or a weekend a month.

You must also apply for a maintenance order for the father to contribute a fixed sum every week or fortnight or month (which must cover all the costs of your child’s life needs – his part of costs of occupancy of your home, be it rental or mortgage payments; his share of all utility costs and for cable and of the cost of food, cooking gas or other fuel; cost of his child care charges, clothing costs of all kinds, footwear, his toiletries, his transportation costs, the costs of his toys and snacks and any other charges needed for his development. Educational, medical, dental and optical costs must also be added to the total needs of your child for the court to properly order sufficiently for your son’s maintenance, so that you and his father can justly bear your respective portions for the provision of your child’s maintenance.

This is a serious and legal obligation for you to act upon. This is why the laws are there. If you do not act in this regard you would be responsible for denying to your child what the law guarantees him. Please do not continue to deny him his legal rights and go and apply for these orders as quickly as you can. You will be assisted by the clerk in the Family Court’s office with the preparation of your claim. Please just make sure that you ask for all the orders I have suggested to be included in your application.

I hope I have clarified these matters for you and that you will go to the court and make the necessary application for the orders to which your son is entitled to have.

All the very best.

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.