Hubby is not the father
Dear Mrs Macaulay,
My husband and I are trying to get a divorce. I live in Florida and he has been deported back to Jamaica. We haven’t been together for five years. I have a child who is not his but the courts are considering her his child because we are legally married. I am 100 per cent sure he is not the father as I have been in a relationship with someone else for the past two years. Also, there’s no possible way my husband could be the father because he was in prison and was deported back to Jamaica after serving his time in America. He can file for disestablishment of paternity to waive his rights as a parent. We need a paternity test done to file with the papers. How do we go about getting a paternity test done that will hold up in court if he is in Jamaica and my child and I are in Florida?
I note that you and your husband have not lived together for five years and you have petitioned the court in Florida for a divorce. The problem you have is that your child, presumably younger than five years and perhaps born within the last two years, is according to you not his child. However, you say that the court is treating the child as your husband’s because he was legally your husband when the child was born. You have not stated who you designated as ‘father’ at the time you reported the birth of your child for registration.
There is a presumption in law that when a married woman gives birth to a child, that child is the child of her husband. This legal presumption is rebuttable by actual fact. This is what a DNA test would provide for you to use in court to rebut the presumption that he is the father.
How can you go about this with your child in Florida and your estranged husband in Jamaica? You say he was deported to Jamaica after he served a term of imprisonment in the USA and that he was in prison when you had your child. This you say is why you are 100 per cent sure that he is not the father, plus the fact that you have been engaged in another relationship for the last two years. You need the DNA test as cogent and admissible proof that he is not the father.
Have you done a DNA test of the person you know is the father of your child, who is presumably in Florida? Have you identified him to the court? If not, why not do so and ask the court to order that the test be done? If it is positive, then surely this would be clear proof that he is the father and not anyone else, including your husband. This in my view is one way of providing sufficient proof to rebut the presumption in your husband’s favour that he is the father of your child. You should try this first.
If, however, the court insists on the test being done only by your husband and the child, which would be odd if they have a clear proof that another man is indeed the father of the child, then you would just have to do it.
Since he cannot go to Florida to do the test and I suppose that you do not wish to travel to Jamaica with your child to do the test, which would be the easiest and most direct way to do it, then you will have to have a DNA lab in Florida obtain your daughter’s specimen and send it to a designated DNA lab in Jamaica, (there are many in Kingston and in the rest of the country), so they can do the test. However, he must go to the lab with proper identification so they can get his specimen and then conduct the test. The test results can be sent by the lab directly to the court in Florida. I assume your estranged husband would have no objection to attending in person for the test, as he would not want to be held to be the father and be liable for maintenance of the child for all the requisite years of the child’s life.
You can ask the Jamaican Consulate office for their help in identifying acceptable labs for the DNA test to be done in Jamaica. Such labs are used every day for USA immigration purposes and court-ordered paternity tests.
I hope I have clarified things for you so that you can now act to resolve this difficulty and clear the way for your child to enjoy her right to a true identity, name and family.
