Married babyfather wants custody

I would like to change my child's surname to mine, but I have an issue. The father won't agree, and he's married, and his wife, sisters and brothers say the baby is not recognised in their family. Can I change the name without his consent? This man has not helped with the baby from birth, but has taken out a passport for our child, as he wants to take the child to Canada. He even went to court and filed for custody.

Your letter is somewhat confusing. You say that the father is a married man, whose family members do not recognise the baby. This is irrelevant legally, as it is the father who has the legal obligation to recognise his child and meet his paternal duties, and exercise his rights if he so wishes, or pursuant to an order of the court. His family members are just interfering in other people's business.

You also say that the father "has not helped"; but then you state that he has obtained a passport and wants to take the child abroad. His name is obviously on your child's birth certificate for him to have done this, but you have not stated whether this entry was done with or without the father's particulars. But with his name on the birth certificate, he could to the passport office and apply for the child's passport. You also state that the father filed for custody. Again, you have not stated what the result of his application was. This is vital for me to inform you what your legal rights are over your child's welfare and upbringing.

It seems clear that you had not made any application for custody or for maintenance, before he made his application, or even after. You were very remiss in not making these applications. You could also have done these applications in answer to his application after you were served.

Anyway, neither you nor the father can unilaterally alter the child's name. You must obtain his agreement. But do you realise that this wish of yours would deny your child the right to their name and connection to the paternal family completely? The law does not work in any way to deny any child their rights. Your child is entitled in law to their legal and family name, which you had ensured was the case when the birth was reported..

Under the Status of Children Act, with the father on your child so named on record, this is prima facie evidence that he is the father of the child. Any change to be made, depending on the age of the child, can only be done with the agreement and under the authority of the Registrar General, or failing this, pursuant to a court order. I can say with certainty that neither the Registrar General nor a court of law would agree to any application to have a child's rights cut off or curtailed in any way because of the feelings or wishes of either parent. This is because the child's best interests and welfare are the primary issues they are bound to uphold in their consideration of all matters relating to the rights of a child. The Child Care and Protection Act, The Children (Guardianship and Custody) Act, the Status of Children Act, the Registration of (Births and Deaths) Act, and the Convention of the Rights of the Child, plus decisions of courts, all exist to uphold the rights of children — to their name to which they are legally entitled, to have a relationship with their families, and to be maintained and be cared for by their parents during their minority.

Regarding travel, if you have custody (legal or even de facto), the father cannot just take the child abroad without your written consent. I would, however, suggest that if you have any hint that he is planning to do so, and you have not consented, you must write immediately or get a lawyer to do so, to the high commission and state clearly that you have not consented to your child travelling with the father abroad. The letter must also state that you have custody.

Use all avenues the laws give you and protect your child. Go to the court and please be proactive about your child's safety and welfare.

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

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