Not the dad after 11 years

Dear Mrs Macaulay,

I have raised my son for 11 years. When he was three, his mother got a child support order, and I have been paying over the agreed rate since then. Recently, I became suspicious because of something the mother said about her ex, and I did a DNA test. It revealed that I’m not his biological father. His mother knew all along but never told me. I’m devastated, but I still love him. What happens now? Do I still have parental rights? Am I still responsible for child support?

This is such a sad and painful situation for you and the child you had accepted as your son, due to the mother seeming to have knowingly and intentionally lied to you that you were her child’s father. However, was it only to you that she lied, or did she make a false report on oath that you were her child’s father?

Clearly, you had intimate relations with her and so readily believed her deceit, which lasted 11 years. You were providing not only maintenance payments, but also spending time with and caring for the child, from which a father/son relationship developed.

You have not stated whether your name is on the child’s birth records and if you were paying maintenance for him due to a private agreement you made with the mother, or because of a court order and a declaration of paternity. The answers to all these would affect how your situation can be dealt with and the future relationship between you and the child.

It seems clear that the mother’s ex has never been and is not now in the child’s life in any way. I am going to deal with assumed positions to be as clear as I can be about the situation you and “your son” have found yourselves in both legally, and regarding your relationship.

Firstly, you must not stop providing for the child. This is a very serious emotional, legal and factual situation! You must take steps in law to rectify the position for you and the child legally in the Family Court. You can also then decide what action, if any, you will take against the mother for her deceit and fraud in giving you a “jacket”, and/or also against the biological father.

You should get yourself a lawyer who is experienced in this area of the law to act for you, and especially about any continuing relationship you would want to have with the child, because one thing that is clear to me, is that you are the only “father” the child has known. I know you would not want to cause traumatic suffering to the child by just abruptly stopping your relationship with him and your provision for him.

In any event, you are entitled to continue to have your ongoing relationship with the child, as blood is not the only basis for parental and child rights and relationships.

If the mother did proceed against you in the Family Court with an application for a Declaration of Paternity (which would have resulted in your name being included in the child’s birth records and on his birth certificate) and she also applied for an order for you to pay maintenance, whereby you have made the periodic payments for 11 years, then you must go back to that court to apply for the declaration and the order to be overturned and that you be removed from the records or varied as is deemed necessary for you and in the best interests of the child, and that you are released from the burden of continuing to provide maintenance for the child. The court shall decide all these by applying the principle of what is in the best interests and welfare of the child.

If there were no orders, you may perhaps wish to apply to adopt the child, with the mother’s consent, based on the length of time that you have fathered him. This would be on the grounds that you care deeply for the child, that you have a good relationship with him, and that it is and will be in his best interests to be his adoptive father, so you can fully be invested in all aspects of his life. This would have to be also with the consent of the biological father, if he can be found. Or the mother can appoint you as the child’s legal guardian, with shared custody between you and her, and comparable access for you with the continuance of your provision of maintenance.

You have said that the mother knew that you were not the biological father all along and so she therefore intentionally decided to lie in order to get financial support from you for the child (and herself too). If you are correct about her knowledge, she would have, if she reported you as the father or applied to the court on her sworn affidavit that you were her child’s father, committed offences for which she can be charged, and she could also be liable for her tortious acts for which she could be found to be liable in damages to you.

Additionally, if the father can be found and it can be proved that he knew of the fact that he was the father and yet knowingly abandoned his obligations as a parent and left you to provide all the maintenance for his child’s upbringing, then pursuant to the Children (Guardianship and Custody) Act, he can be denied any contact and relationship with the child, unless he can convince the court that he is a fit person to have custody; and, if the court decides, it can order the father to pay back to you the whole or part of all that you have paid all the years for the child’s maintenance.

Note that it says the father and not the mother. It is not likely that it would be ordered for the mother to pay you back as this would in all probability be impossible for her to afford, and even any part payment may so adversely affect the life and standard of the child, that no court would order such to be the case. But the father, if he wants to share custody of the child, could have such an award made against him.

If the DNA test you did was privately done, the court will order its own test in one of its approved labs, for any change or rectification to be done.

Another issue for your lawyer to consider, is whether you had accepted the child as a “child of your family”, as well as the question of whether your payment of maintenance was solely based on the claim of the mother that you were the father, and whether she took steps to make this legally recognised by her sworn birth report or for her court application, if she made any.

You could also try and apply for joint custody and definite and specific access, as a continuing relationship with you would clearly be in the child’s best interests, which would remove the danger of very serious adverse psychological trauma being suffered by the child if you are suddenly absented from his life. The court will definitely give serious consideration to the fact that you have been the child’s only father for all those years, and a sudden break would definitely be very detrimental to the child, who would definitely need therapy and counselling for an appreciable length of time.

This is a very complex situation in which you must decide how you wish the future to be. Please seriously consider all I have stated, and seek full legal advice before you take any drastic course of action. And always remember that you are hurting by what the mother did, but you love the child and have a real relationship with him.

I wish you and the child all the very best, and the mother too, and that she acts sensibly and unselfishly and only in ways which are in her child’s best interests.

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. All responses are published. Mrs Macaulay cannot provide personal responses.