Biological dad’s neglect blocking adoption

Dear Mrs Macaulay,

My husband and I have been together for six years, married for two. I have a seven year old daughter from a previous relationship. Her biological father has never done anything for her. It has been my mom and my husband all the way with me. In 2010, my husband and I spoke about him adopting her and in 2011 we started the procedure. We reached where they (CDA) would interview the biological father, and he refuses to come in. Yet he still hasn’t done anything for my child. Apart from taking him to Family Court for my child’s maintenance, what other way is there that I can get him to sign over his rights to my husband?

My husband is unable to get me pregnant.

The situation you, your husband and the Child Development Agency (CDA) find yourselves in is not all that unusual. I have had to make applications to the court over the years for orders which effectively bring to an end the rights and obligations of fatherhood of deadbeat dads, and those like your child’s biological father who is not only merely deadbeat about his obligations, but who is completely uninterested in and downright indifferent about the fact that he fathered a child, who is alive and growing up.

You have asked what you can do to get him to sign over his rights (and obligations — we must not forget these) to your husband, other than making an application for him to contribute to the maintenance of your daughter.

One thing which is clear and apparent, is that he is not interested at all in your daughter’s welfare or what would be in her best interests, to make the little effort required to attend the offices of the CDA and be interviewed for a short while and sign the necessary document consenting to the adoption and thereby releasing himself permanently from his parental rights and obligations.

What steps then can you take?

Your legal options

You and your husband should first apply to the Supreme Court for your husband to be appointed her guardian and for both of you to have full custody, care and control of her. The application for the orders sought are to be made pursuant to the Children (Guardianship and Custody) Act. You can and should also add an application for the court to declare, pursuant to the same Act, that the biological father abandoned his child and that he therefore has no right to custody in any way of the child as he has always been unmindful of his parental duties and oblivious of the child’s welfare.

This joint application by you and your husband must be supported by affidavits from each of you, and from your mother, all of which must be served with the application on the biological father personally.

Your affidavit must detail everything — the facts as you experienced them, the biological father’s actions, words and attention (if so up to when) or inattention from the time you where pregnant, through your confinement, and your daughter’s birth. You must say what he did, what contact he had with her, if any, and thereafter throughout the years up to the date of the making of your affidavit. You must say

the emotional impact and the day- to-day burden upon you and

your daughter.

You have to also detail in it how you and your daughter managed without his support and blatant lack of interest, which is what is made clear in your letter. You should also say what your mother and husband have done and are doing for your daughter. You have to also relate the whole adoption experience and what clearly amounts to his refusal to act one way or the other about the issue.

Your mother’s affidavit should state what she knows of the circumstances. She must say what she observed and what she had to do to assist you and your daughter, as you were an unsupported single mother. I do not mean by ‘unsupported’ only in the financial sense. Your mother’s affidavit must give the timeline of her support of both you and your daughter and the many ways she did so.

Your husband’s affidavit must clearly state when he came into the picture and detail how he has been ‘fathering’ the child and that he loves her as his own and wishes to adopt her, in order to ensure that she is fully protected as any biological child of his would be. He should also relate what occurred with his application to adopt his ‘daughter’, and his frustration about the biological father’s complete disinterest, which has resulted in halting the process. He must say that he wishes to complete it but in the meantime he wishes to ensure that you both legally share the parental rights afforded to guardians and of those with legal custody, care and control. As in your mother’s affidavit, he should also state the many ways he has ‘supported’ his ‘daughter’ and you in your ordeal.

One would assume that the biological father will, after being served, act with his characteristic disinterest by not acknowledging the service of the documents on him and doing nothing to contest or consent to the application. It would indeed be surprising if he expends money in obtaining legal representation to do anything, when he did nothing regarding the CDA’s request, which would not have put him to such expense. If, therefore, he does nothing up to the date of hearing, the judge before whom the matter is listed, once satisfied that he was duly served and that he had sufficient time to act, is empowered to proceed and make the orders applied for and any others she or he may think necessary or appropriate to ensure protection of your daughter’s best interests.

Once you obtain your orders, you can then proceed with your husband’s application to adopt your daughter and there would, with the production of an original or certified copy of the court orders, be no need for the CDA to even seek to contact him for any purpose whatsoever.

I hope I have clarified the position for your family and I wish you all the very best.

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.

DISCLAIMER:

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.