Mom wants deceased father’s name off BIRTH CERTIFICATE

Dear Mrs Macaulay,

My son was born in 2012 but before he was born his father died. At birth I gave him his father’s name. Now I would love to change it to my name. I have been to the RGD and they told me I have to get an order from a judge at the Family Court. I went to the court but someone there told me that it can’t be done like that, and that it’s best to get it done by having the father’s parents come in and act on his behalf. However, I am not in contact with any of his family now. If the name can’t be changed, is it possible to add my name to it?

The situation you have written about is quite unusual as more often than not, usually applications for removal are made where fathers are seeking to have their names removed from records and birth certificates, generally on the ground that they are not the biological parents.

I find the advice that you have been given extremely strange, with no basis in reality or in law. Your child’s father, if he was still alive, could have applied to have his name removed from the birth certificate on the basis that he was not the father. In such circumstance, if the DNA report (ordered by the courts) supported his denial of paternity, then the relevant orders would be made for his name to be removed from the certificate. If it proved that he was indeed your child’s father, then it would not be removed and all his particulars would be added to the records of birth.

Since he is dead, his parents, or one of them, being the executor(s) or administrator(s) of his estate, could, with the same suppositions, make an application to have his name removed on the ground that he is not and cannot be the father. They would have to bring witnesses to prove that you did not have an intimate relationship with him, or if you did, that it was not at the relevant time for your pregnancy to have occurred as a result of it. In such a case, you would be entitled to call your own witnesses to prove that you indeed had an intimate relationship with him and when that was, how long it lasted, and the date when you became pregnant.

Note that the father’s parents cannot appear for him just because he is dead and they are his parents. They would only appear, if they were executors of his estate, to represent his estate if a paternity order would put your child in the position of a beneficiary of his estate.

You have no basis in law and in fact by which you can obtain an order to remove your child’s father’s name. Your application will fail. Also, you will be taking away his right to have his father’s name which identifies him as a member of his father’s family. There is no reason why you cannot also give your child your surname but you cannot do so by getting an order in the Family Court. You have to use other means.

In my opinion, if you go ahead with what you wish and plan, you would be infringing your child’s right to know who his father was, and to bear his name.

Under the Convention on the Rights of the Child, to which Jamaica is bound, every child is entitled to a name and to an identity, and as is the norm, children bear their father’s surname. This you had already secured for your child when you gave his father’s name upon your report of the birth. That surname is recorded as your son’s surname and so appears on his certificate of birth. You cannot and have no right to take this away from your child; he has a right to know that he is a member of his father’s family as well as of yours.

The convention provides that every child has a right to family, not just to the mother’s family, but also to his father’s. It therefore behoves you to try and find his father’s family so that he and they can meet and get to know each other. The Child Care and Protection Act, which encoded most of the rights, obligations and principles of the convention, also makes clear the pivotal role of family in the lives of all children.

In order to add your name to his existing names, you will have to do this by deed poll. You can, of course, also by deed poll, change your son’s name by deleting his father’s surname and substituting yours for the father’s. I, however, strongly advise you not to do this, as you would, in my view, be acting contrary to your son’s rights and interests.

So please do not ignore your son’s rights and take away the proof he now has that the deceased is his father and thereby erase your son’s roots. Remember that since your son’s father is dead, you have to make sure that when he asks about his father you can show him the entry in his birth certificate and explain that his father died before he was born and this is why he never met him and does not know him. His father did not intentionally abandon him, but died. He is entitled to his name, but add your name if you so wish. Good luck.

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.