He is not the father

Dear Mrs Macaulay,

My husband recently completed a DNA test for a child presumed to be his in Jamaica. We live in the United States. The results returned to show my husband is not the child’s father. With that being said, the child has my husband’s exact identical name — first, middle, and last. Of course my husband wants his name removed as he is not the father. What’s the easiest way to have this completed? Also, is there a way to force the mother to pay for this name change since she lied about the father of the child?

I assume that you have written on behalf of your husband on this matter, with his consent and at his request.

You did not say how your husband came to have the DNA test done. Had it been ordered by a court? Or was it because he had filed an application for the child to be granted permanent residence in the United States of America. Was it done in Jamaica?

With those questions having been stated, let me now deal with the gravamen of your letter. That is, what is the easiest way to have your husband’s name removed? You have also not said whether he is actually named on the child’s birth certificate as the father or whether it is only that the child was given all his names. At the end of the day, I understand you to be saying that your husband wants his names removed from whatever and wherever they appear or are used.

The long and short of it is that the only way your husband’s names can be ‘removed’ from this child, that is to say, from his birth records and from the use of them, is by way of an order of a court. Your husband must make his application to a court in Jamaica, either to the Supreme Court or the Family Court, for a declaration that he is not the father of the child and for consequential orders based on the declaration being made.

The consequential orders he would need to have his name removed, and which he must apply for are:-

(1) If he was registered as the child’s father in the birth records, that it be ordered that those records be rectified by the removal of his name and replaced by the true name of the child. If the real father comes forward or is found, then that name, with the father’s consent, can be ordered as the replacement. If not, then it will be the mother’s name, because a child has the human right to an identity. The grounds for this order will have to be based on the fact that his name was used falsely, either intentionally or inadvertently, by the mother who led him to believe that he was the father of the child.

(2) If your husband wishes to make a claim for all he provided for the child, he must apply for such an order. He would have to prove that the mother knew that he was not the father and intentionally and falsely named him as the father. This will not be easy to do. Clearly, your husband was intimate with the mother at the relevant time, as he himself believed that he was the father of the child, as the mother may also have honestly done. The fact that she had also, if the DNA test is correct (and it will without a doubt be checked by a court-ordered one), been intimate with someone else, does not mean that she purposely and intentionally identified him as the father. The only way that he would get anything back from her is to prove that she was intentionally deceptive.

(3) He should add an application for any other order which the judge thinks just.

If your husband does not do an application to the court as I have suggested, he would only be left with convincing the mother to change the child’s name by deed poll. This method will, however, not remove the names from the birth records because a change of name by deed poll only warrants a notation in the margin of the birth records.

I trust that I have given you and your husband sufficient information to assist him to decide whether he does in fact wish to put this child through the trauma of a change of name for something which was not the child’s fault at all.

It was your husband’s action with the child’s mother which caused the existing situation. The fact that the child has your husband’s exact name will have no legal or factual consequences when there is in existence the results of the DNA test proving that your husband is not the father. You have not stated how old the child is, but I trust that your husband will seriously consider whether he needs to do what you say he wishes to do and hurt this child. I suggest that you and he seek and obtain some counselling about the matter and of course, legal representation. Good luck to you both and I pray that all goes well for this child.

I must take this opportunity to congratulate Usain Bolt on his fantastic achievement on 18th August 2016. I had to stop writing this column to watch the 200m final of his historic triple Olympic record. What a thrill it was. He is indeed the greatest of athletes, and beyond this, a true statesman. Jamaica is lucky to have such a well-rounded ambassador to the world.

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. All responses are published. Mrs Macaulay cannot provide personal responses.

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.