Dear Mrs Macaulay,
I have a three year old and I want to change his name from his father's name, who is not active in his life. He only signed the birth paper. I have a friend who takes on the role of his father â€” he sends him to school and gives him everything he wants. I want to give my child this man's last name. How do I go about doing this? Do I have to have the father's consent, or can I just do an adoption?
Let me answer your last two queries first. First, you generally need to obtain the registered father's consent to make a change that alters your child's identity. Secondly, you yourself cannot apply to adopt your child on behalf of your friend. He must do so himself, and he must have your consent to do so. The biological father's consent, if your friend applies, would be sought by the Child Protection and Family Services Agency.
However, though the biological father's consent is generally required, there are circumstances the law provides for when his consent would not be required. This includes if you apply first to have sole legal custody and care and control of the child. The biological father would be the defendant in your application and the main ground and basis of your application should be his complete lack of interest in the child, and that he is therefore unfit to have any legal right or authority regarding the child as this would be contrary to the best interests and welfare of the child.
Once you obtain the order granting you sole legal custody and care and control, you alone would have all legal rights and the sole authority to make all important and daily decisions relating to your child.
If you do not make these applications, the biological father is in law recognised as having and will continue to have, the same rights over the child as you do, and the same powers to apply to the court as you do for such orders.
Once you have such orders of sole legal custody and the care and control of your child, the decision about all aspects of your child's life would be solely for you to make, as the biological father's rights to legal custody and care and control would have been, in effect, extinguished.
Then, if after this your friend still wishes to adopt your child, this would assist with his application moving smoothly through the processes. Note that in no circumstance should you apply for any maintenance in your application for sole custody and care and control from the biological father, even if pressed to do so. A maintenance order would be acknowledging his legal position, rights and obligations as a parent.
You must also remember that the mere changing of your child's surname would not give your friend any recognition in law. You see, without you getting the orders first, the biological father could block all your plans to bring a caring paternal relationship permanently into your child's life.
You would most certainly succeed if you make your application, obtain your orders, and later on, your friend can apply to adopt your child.
You need the services of a good family law lawyer who has good experience in child law, to assist you to go through with the applications I have suggested and to obtain the legal orders which grant you sole parental rights to custody and care and control of your child. Then some time after this, your friend can make his application to adopt, if he is so minded.
I wish you all the very best, and a settled and happy family life.
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 email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.