All Woman

She refused a DNA test...

By Margarette Macaulay

Monday, February 24, 2014    

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Dear Mrs Macaulay,

My ex and I lived together from November 2012 until May 2013. She walked out on me when she was six months pregnant, and got together with another guy. The baby was born in September 2013. I want to be involved with this child, as I'm a young professional and I know I could make that child both mentally and socially better off in life. How do I initiate the legal procedures? It is my belief that she has given the child the name of the guy she eloped with. Is that legal? How can I move forward in supporting and connecting with this child? She refused a DNA test.

You did not state what kind of ex you refer to in your letter. I am going to assume that she is your ex-girlfriend with whom you lived for about seven months. If you had been married to your ex, even for those short months, the law presumes in a marriage that the husband is the father of the child for even up to 10 months after the husband's death or termination of the marriage by any other means. This is a legal presumption which can be rebutted by actual facts.

You wish to be involved with the child who you are clearly claiming is yours. You say that she has refused to have a DNA test done to determine paternity.

You must apply in the Family Court for your parish for a declaration of paternity and you should also apply for custody and for access to your child.

The application for your declaration of paternity must, of course, be heard first. In the course of this application in which you would assert that you are the father of the child, the DNA test will be ordered if the defendant, your ex, denies that you are the father of her child. She would then have to produce the child for the test to be effected at the time arranged at one or the other of the laboratories which conduct such tests.

The clerk of court will assist in this regard and ensure that both you and your ex know exactly what you must do to effect the DNA test. She cannot refuse the test being ordered as the court has the power to order it in circumstances when the alleged paternal parent seeks to deny the paternity of themselves, or the mother denies their paternity.

If she does not obey the order of the court, she would be in breach and can be penalised for her contempt of the court order. She will have to obey it whatever her views are, because you would be claiming to be the father of the child. It should be remembered that each child is entitled to have their real name and real identity unless an order of the court allows otherwise; for example after an adoption order is made. If your ex knowingly gave false information when she reported the birth of the child about the father of her child, she has committed an offence under the Registration (Births and Deaths) Act.

You should go first to the Registrar General's Department and pay for and do a search for the birth registration of the child. Ask for the search to commence from August 2013 and go up to October 2013 in case the birth was early or late. You will have to give the name of your ex, as I assume that you do not know the name of the man whose name you say was probably used. I suggest that you apply for at least two certified copies of the birth certificate when it is found. You see, you will need this when you go to make your application for your declaration of paternity, as it must be filed with your application.

Your application for custody and access, which you should also make, can be fixed to be heard on the date fixed for the continuation of your declaration of paternity application, after the receipt of the result of the ordered DNA test. If the result is in your favour, your custody and access application can be heard and dealt with and the appropriate orders can be made. As to custody it would, in all probability, be an order for joint custody to you and your ex, which will entitle you to participate in all the important decisions about your child's development and welfare. The court can also fix and order the terms of your access to your child. It would probably also deal with the issue of maintenance contributions from you and your ex.

Please therefore get a move on and get the certified copies of the birth certificate. If you can, get the services of an attorney which, with your applications to and during the hearings in court, would make things easier for you. You do not have to do so in the Family Court if you do not wish this, but it will be more prudent to do so. I know that the courts applaud fathers who demonstrate their intent to be active, responsible fathers who are present in the lives of their children. So go for it as soon as you can, because as a young man you are doing the correct and honourable thing for your purported child. Good luck.

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.

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