He is not the father

All Woman

Dear Mrs Macaulay,

My spouse recently became aware, through two paternity tests, that he is not the father of a now three month old baby.

He was not present at the birth of the child so I don't believe his particulars were added during the child's bedside registration. However, the child's mother gave the baby his surname. My question is, how would he go about having the child's surname changed?

I note that your spouse has not written on his own behalf, and you are writing without indicating that you are doing so at his request. I find the circumstances you have related quite strange and confusing. You state that your spouse became aware through two paternity tests that he is not the father of the child. You have not stated what kind of paternity tests he took, and why it was necessary for him to take two. You also have not stated whether these tests were done at a prescribed laboratory wherein the results would be accepted by the courts as reliable and correct. His actions, though, clearly indicate that he had intimate relations with the mother of the child during the relevant period of time.

You also state that he was not present at the birth, and you do not believe that his particulars were given following the birth for the child's registration. Note that it's the 'particulars' which are obtained after the birth so that the certificate of particulars in the prescribed form can be prepared for the chief resident officer of the public hospital or the person in charge of the private hospital where the birth occurred, to send to the registrar for the birth to be registered.

You stated as a fact that the child's mother gave the baby your spouse's surname. But how can you be sure of this? It seems clear from your letter that neither you nor your spouse have seen the particulars for registration or a copy of the birth certificate. The authorised birth registration form signed by the registrar which contains entries obtained from the certificate submitted under the Registration of (Births and Deaths) Act, has, in the body of it, the place of birth, the date of birth, sex, and the name of the child. In the box below this, it has the heading “Father” and then name and surname, age at the time of the birth, occupation, birthplace. Then of course there are boxes for the mother's particulars and those of the informant of the birth followed below by the registrar's certificate which includes this statement, “Entered by me from the particulars on a certificate received from ...”, then in brackets “witness” followed by the spaces for the date and signature. Below these there is the heading and space for “name if added after registration of birth”.

Are you and your spouse sure that it is his surname which was given to the child? You can see that for the child, no surname is mentioned, only the “name of child”, whereas for the father it says “name and surname”.

I can tell you, without a doubt, that there is nowhere in the Act, which provides for the removal or change of a baby's surname. All the provisions refer only to the father's name and particulars having been entered either from a joint request by him and the mother, or from a declaration of both of them, or by the father attending on the registrar personally, or the mother submitting a request in writing, or furnishes a declaration naming and giving a person's particulars as the father of the child. When the father's name and particulars are given by the mother only, the father should be sent a notice of this fact and he can, within three months of the receipt of the notice sent to him, send a counter notice to the registrar in the prescribed form (which can be obtained from the Registrar General's Department [RGD]) denying paternity of the child, and the registrar shall not take any action to register his name or particulars as the father of the child.

So if you or your spouse are really serious about taking action to remove his 'surname' from the birth registration, I would suggest that he must first definitely ascertain at the RGD that his surname is indeed in the birth records, and then he can find out whether a notice had been sent to him, and if the registration has not yet occurred, ask to complete a counter notice denying paternity and stating that he had not consented for the child to have his surname. If the child's birth has been registered, then he can consider applying to the family court of his parish to have his surname removed from the child's birth records and certificate. In making any application to the court touching on the issue of his denial of paternity, he would most probably be ordered to do a DNA test at one of the court's authorised laboratories. He will also have to prove that it is definitely his surname which was given to the child, assuming he does have a very unusual surname.

You both must consider that if his particulars are not in the registration of the child's birth, how could he be identified as the person whose name the child bears as a surname?

He may not even be able to make an application to the court based on what you have said in your letter, unless his name is indeed so unusual that the child's mother could only have used his surname. The first hurdle in fact is whether or not the baby's birth records do in fact include a surname for the child. You have to ascertain this as a fact first, by obtaining a certified copy of the child's birth certificate. If it is there, then you and he can consider engaging the services of a family law lawyer to advise and assist 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 allwoman@jamaicaobserver.com ; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published.

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