Is he my child?
Dear Mrs Macaulay,
I was along with a particular young lady in December 2002, we had sexual intercourse and the condom failed. She said she would abort it if she got pregnant. About two months later she contacted me and told me she was pregnant. I asked her if it was mine and she said yes.
She adamantly stated she wanted to get rid of it so I gave her the money. In December 2005, she contacted me out of the blue and told that I had a son who was born October 1, 2003. I was not convinced and told her she had to do a DNA test at my expense but she refused.
I went to meet the child last Christmas (he is now three years old) and he looks nothing like me (I know this doesn’t matter), however, she showed me a birth certificate (the piece of red one) and my name was on it and the child had my name. I’ve been trying for a year to get her to do the DNA test on the child and she refuses.
What I need to know is:
1. How did my name get on the birth certificate (registration paper) when I knew nothing about the baby or the pregnancy at that time?
2. How can I get my name removed because obviously he isn’t my child if she doesn’t want to do the test?
3. And what legal rights do I have in clearing my name?
I am in a position to take care of my child and I have no other children so money is not an issue where the child is concerned and if this child is mine I would like to be a part of his life.
– “Maybe” Father
Dear “Maybe” Father,
I am always happy to receive letters from men and hope that I receive many more in the future. Advocacy and activism for women’s rights do not mean interest only in women; it encompasses men also.
You see we work for women’s rights, so that women can be empowered enough to be real and true partners with men. Each country and the entire world would be better off, if women and men lived as partners with mutual respect for each other and I believe they would consequently live in greater harmony.
Now let us deal with your particular problem
(1) How did my name get on the birth certificate (registration paper) when I knew nothing about the baby or the pregnancy at that time?
I do not know with certainty how this occurred but it is clear that it should not have happened without your knowledge and consent. You were not married to her at the time of the conception or of the birth, so you could not automatically be inserted as the father.
She must have, either herself, or through the person who gave information of the birth, on her request, given your name as the father and the child’s surname as yours or someone might have “pretended” to be you and as such supplied your name etc to the official hospital after the birth, whereby the baby would then be given your surname.
Under the Registration of Births and Deaths Act, the primary duty for reporting a birth for registration purposes, is that of the mother and father of the child. Only on their failure does the duty pass on to others who know of the birth.
It is also only if a birth has not been registered up to 42 days after the birth, that the registrar is empowered under the Act by a notice in writing to direct the mother and father to attend in person at the office and give information of the birth and to sign the registration form and its counterfoil.
From what you state you were shown by the mother, the birth must have occurred in a hospital and the prescribed form with details of the birth was completed there and she was later given her copy. The original would have been sent in a batch to the Registrar General’s Office, where the process of registration would proceed in the normal way.
Thereafter, all that needs to be done is to apply for a certified copy of the Birth Certificate. But, since you were not married as I said, the registrar can only register you as the father, when satisfied that both you and the mother requested that such an entry be made and both of you signed the form and the counterfoil (This is why I opine that someone may have assumed your identity). This is, of course fraudulent conduct and is an offence under the Act.
If such was the case, and it seems as if it must have been as you knew nothing of the birth, the Act, provides a three month period after receipt of the notice when you could have denied paternity. Since you received no notice, you could not by counter-notice deny your paternity within the statutory prescribed period.
You can, now apply to the Supreme Court or the Family Court in your parish to have your name removed from the entry in the register.
The court would so order if it is satisfied that entry was made on false information from the mother of the child or any other person, or that you did not receive the prescribed notice or that in your particular factual circumstances, the three months permitted for denial of paternity was inadequate and that it is reasonable to make the order.
The court order would direct the Registrar – General to remove your name and any particulars from the register and for the certificate in the custody of the mother or some other person to be taken in by her /them and cancelled and for a new certificate without a reference to you as the father to be issued.
The Act clearly states that any person who willfully gives the registrar any information which they know is false or which they do not reasonably believe to be true or that fail after a court order to deliver up a certificate of registration, shall be guilty of an offence and on conviction following a trial in a Resident Magistrate’s Court can be fined or imprisoned for a maximum term of three months.
This then answers your second question – How can I get my name removed because obviously he is not my child if she doesn’t want to do the test?
You must apply to the court to have your name and any particulars removed.
Your third question – What legal rights do I have in clearing my name? – has also been answered, except that I would advise that you also in your application, request an order that the DNA test be done, and, if positive, an order for access to your child.
I advise this because, if indeed he does turn out to be your child, you can at once, in the course of that court proceeding, get your access to him fixed and made part of the orders and also the issue of the provision of maintenance for him can be dealt with at the same time and be made part of the orders.
You will of course have to find out her address as she would have to be personally served with your application. I can assure you that such applications by you will resolve the matter for you and since you sound like a responsible and caring man, I hope he is your child because then his life would be enriched by your being a part of it. Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.