Cheapskate dad wants step-dad to maintain his child

Dear Mrs Macaulay,

I got married in 2008. I have a child outside the marriage who is now five. I am in the process of taking my child’s biological father to court for maintenance, as he stopped paying when I got married. He said my husband is making more money than he is, and so should be the one supporting our child. My husband covers some of the expenses, but he said the birth father is obligated to still provide for his child.

What are the laws regarding step-parent support? Does a step-parent automatically assume responsibility for a child upon marriage? How is the amount of support shared? And does “taking responsibility financially” mean that my husband would have any claim to be my child’s guardian, should anything happen to me? From what I’ve been hearing, the step-parent has equal responsibility for support, but would be excluded as chief caregiver on the custodial parent’s demise. I think it’s unfair that my husband would be expected to provide for and treat my child as his own, then be denied the right to continue parenting the child, in favour of the biological father who hasn’t played a fatherly role.

Thank you for your letter. Let me go straight to your problem. How unfortunate it is that your husband is not the father of your child, instead of the individual who is in fact so. What a cheapskate!

The Maintenance Act places the primary obligation for the maintenance of a minor or dependent child on both parents. Their obligation is to maintain their child who is unmarried, to the extent that they are able to do so. Their ability is predicated on the finding of the court of their affordable net income. The biological parents are of course the first in line with regard to the obligation to maintain minor children, however, a parent can also be some other person, for instance like your husband, if he accepts and embraces your child as a member of his family. If this is the case, a court in determining what obligation, if any, your husband would have for the maintenance of your child, would examine the extent to which he assumed responsibility (if he did so) for this. In this regard, it is noteworthy that you say “my husband covers the expenses”. It leads one to wonder if he has assumed responsibility for your child’s maintenance.

However, you also stated that your husband has said that your child’s birth father is still obligated to provide for his child.

This seems to indicate that your husband has not assumed full responsibility for the maintenance of the child. He is making clear that the biological father’s obligation to maintain his own child must be met.

This then is the legal position relating to step-parents for maintenance of minor children or dependent children of their spouses:

(1) The step-parent must accept the child as a member of his or her family;

(2) The step-parent must have, after the acceptance of the child, assumed responsibility for the child’s maintenance, or assumed partial responsibility;

Without these two points, a step-parent, cannot and will not be held to have an obligation to maintain a step-child. This is the position in law.

In law, you and the biological father are primarily responsible for the maintenance of the child, that obligation does not mean that you each must automatically provide half of what it costs to maintain your child. The proportion would depend on the financial capability of you and he, which would be determined based on evidence provided to the court by each of you. I assume that you are meeting your responsibility and what we are talking about vis-à-vis your husband, is that he’s assisting you because the child’s biological father has since your marriage refused to continue to provide for the child.

You ask whether “taking responsibility financially” would mean that if anything happens to you, your husband can claim to be your child’s guardian. The answer to this is short. He cannot claim to be her guardian, unless he accepted her as a child of his family and he was solely responsible for her and had care and control of her for a period of time which would have resulted in the existence of a close and caring relationship between them. However, the safest thing to do in these kinds of situations is for him either to adopt your child or that you and he apply for legal custody of the child, with care and control of you both. In addition, you could perhaps in your will appoint him the guardian of your child. These steps would of course mean that you would be in effect curtailing the parental rights of your child’s biological father.

As I have stated above, I hope you have it clear that no one can force your husband to provide for your child and treat that child as if he or she were his own. He has to freely and willingly decide to accept the child as a child of his family and he also has to willingly and freely decide to make whatever provision he chooses to make, when her biological father is alive and not disabled.

You must also remember that a parent who has ignored and in effect abandoned his child would find it a mountainous task to convince a court that he ought to have custody, care and control (if anything happens to you) instead of the step-parent, who provided a caring and nurturing home for a child accepted into his family and for whom he made financial provision throughout. So please don’t worry about this aspect. In my opinion, the court acting in the best interest of your child would never hand that child over to an uncaring and selfish biological father, rather than leaving her with her caring step-father.

So finally, the biological father of your child does have an obligation to maintain his child if your husband does not wish to assume full responsibility of the child’s support. So you can take him to court to seek an order that he continues to make provision for your child. The court will, on such an application, make full enquiries into all of the parties’ circumstances in order to determine where the burden of maintenance lies for your child and in what proportions, if any. It would also deal with the issue of access of the biological father to the child. You made no mention about this. I trust that you do in fact have legal custody of your child with an order for care and control to you, if you do not have such an order, please delay no longer in obtaining one.

I hope I have clarified the matter for you and that you can move ahead. If not, please write again, so that I can make sure that you can move ahead with a clearer understanding of the issues involved. Good luck.

Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via e-mail to allwoman@jamaicaobserver.com. We regret we cannot provide personal responses.