You are the father...

By KIMBERLEY HIBBERT

Monday, July 09, 2018

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WHAT are the obligations of a father who is listed on a child's birth certificate, even if the child is not biologically his? He is legally indebted to the child unless he can prove otherwise, the law states. And in the case of married couples, there is an automatic presumption of paternity without there being a need for additional supportive evidence

Under the Status of Children Act, all the children of a married woman are presumed to be the children of her husband and he would be on their birth certificates for the duration of the marriage. This presumption extends up to 10 months after the death of the husband; or from the date of them living apart as a result of an agreement of separation; or under an order of separation (this could be pursuant to the Domestic Violence Act); or upon the grant of a decree nisi of divorce made by the Supreme Court of Jamaica or by a competent court of another country.

If the father wishes to rebut the presumption of his paternity, he has to apply under Section 10 (c) of the Status of Children Act to the Family Court or the Supreme Court for the court to decide and declare whether or not there is a relationship between father and child.

For such a determination to be made, a DNA test is normally ordered to be done, for which the person questioning the status quo would have to pay the cost. And both parties have to consent to the DNA test.

According to attorney-at-law Sashakay Fairclough, the law also removes the distinction of children born in and out of wedlock where paternity is concerned. As such, the presumption also applies in a common-law situation where a couple is together for more than five years as the court will legally recognise them as married.

“Whatever applies to legal marriages will then apply to common-law marriages. As you know, a relationship becomes a common-law marriage in the eyes of the court once the individuals (who should not be married to other people) have been together for five years or more,” she said.

Of note, Fairclough pointed out that a father is not the only individual who can make such an application to the court and explained that Section 10 of the Act indicates that the mother may also make the application along with any individual who has a 'proper' interest in the results.

The attorney warned that presumption of paternity can be a double-edged sword.

“I have seen situations in Jamaica where men believed they were the fathers of children and cared for them for many years. It is always devastating for families if these men, who usually adore their children, are proven not to be the biological parents,” she said.

Note that a man's name cannot be removed from birth records simply because he wants it to or because he suspects infidelity. He would have to make an application to either the Supreme or Family Court for a declaration of paternity and for consequential orders based on the declaration being made.

He could also try to convince the mother to change the child's name by deed poll, but this would not remove his name from the birth records.

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