Is adoption possible without one parent’s consent?
Q: Dear Mrs Macaulay,
I am engaged to be married soon. I have a child from a previous relationship. When we get married, can my new husband adopt my son without the biological father’s consent? He is an absentee father who was only granted non-residential access when we went to court the other day. The judge granted joint custody with me having control and care and he was granted non-residential access as I am my son’s sole provider and caregiver.
A: You assert that the father of your son is an absentee father who was only given non-residential access when you were in court recently. I am not sure what you mean by ‘absentee father’. If he was an absentee father it would be very odd for the court to have granted him access without some order or direction for the two of them to spend time together in the company of a person well known to your son, until they get to know each other.
If by the term ‘absentee’ you mean that he has not been providing any contribution for your son’s maintenance, then what you mean is that he is a ‘deadbeat dad’. This is a different thing altogether. His failure to provide materially for his son cannot erode his right to have access to his son. In such a case, you ought to have applied for an order for maintenance.
I conclude that you have never done this, and that the application dealt with in court recently was for custody, care and control of your son. In fact you state that you are your son’s sole provider and caregiver. Well, the father cannot be his son’s caregiver if he resides with you.
Clearly, from the judge’s order, the court was convinced of the father’s interest in his child because a joint custody order was made. This means that both of you have the legal right to make all the main decisions about your son’s upbringing and development. Care and control to you legally places the responsibility on you for your son’s day-to-day care.
If the biological father failed to provide for his son’s material needs and you did nothing about it, then you agreed with such a situation. On you rests the responsibility to apply to the court on his failure to provide for his son. Your son cannot do so for himself. You therefore chose to provide alone for your child.
You have asked whether your soon-to-be husband can adopt your son without his father’s consent. Surely you must know that the answer to this question is a resounding no. The recent evidence is that the father is interested in his son, as he appeared in court and obtained a joint custody order and a non-residential access order. Even if you had not heard anything from him for a good while, the Adoption Board has the responsibility to contact him after you would provide them with his correct address, in order to obtain his consent or refusal to consent to the adoption. You must be completely honest about this. The consequences of an intentional misstatement of fact(s) which result in an adoption are not to be contemplated.
His rights as a father cannot just be ignored, nor can his ‘consent’ to an adoption be assumed.
But it seems unlikely that the biological father would give up his rights as a father and consent to his son being adopted, since he actually was interested enough in his son to ensure that he obtained joint custody of him with you and access, even though it is non-residential.
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.
