Wife wants to register child fathered by another man

DEAR MRS MACAULAY,

I have been living overseas from January 2017. I had an ongoing divorce by a lawyer in the Supreme Court, which was finalised in August 2018. I had a baby a week before that final absolute was signed and according to US law, being married when the child was conceived and born 300 days after my divorce, my ex-husband is legally her father.

Since I wasn’t aware of any of this, I can’t register her until I get a court order stating that she wasn’t a part of the marriage, in order to receive her birth certificate and have her biological father, my now husband, on the certificate. This has to be done before she is one, and she is going to be one in July.

Is there anything I could get from Jamaica, signed by a judge, that she wasn’t a part of the marriage? The lawyer I used for my divorce said there is nothing he can do.

I note from your letter that divorce proceedings were going on to terminate your marriage when you became pregnant for the man who is now your husband. You state that you had the baby a week before the decree absolute was granted. This means that, in fact, if not in law, this child was, in fact, born during the currency of your marriage.

Therefore, any report made of her birth or registration of her birth would have, administratively, the father and his particulars as that of your ex-husband automatically entered, unless you clarify the situation then and there and the biological father attests to being the baby’s father.

By law in Jamaica, the child is only presumed to be that of your then legal husband because of the exclusionary provisions which appear in the Act.

The law in Jamaica is in the Status of Children Act, in section 6. It provides in section 6(1) that subject to subsections (2) and (3) of section 6, a child born to a woman during her marriage or within 10 months after it has been dissolved by the death of her husband or otherwise, shall, in the absence of evidence to the contrary, be presumed to be the child of the mother and her husband, or former husband — this therefore covers death or divorce. Note that the words are ‘shall be presumed to be, in the absence of evidence to the contrary’.

You speak of the US provision as being absolute, which is surprising, especially with the 300 days period of time. You ought to check this properly again, to be sure that there are no exclusionary clauses there also. You could, after the birth of your child, have had a DNA test done with your now husband and you could have used the report to obtain a declaration and consequential orders in the Family Court here or in the Supreme Court.

You must, however, make sure that your ex-husband is served with the application, which must contain a notice to him that if he fails to attend court on the appointed day, that the declaration and orders sought would be made, in his absence. The service on him of the documents must be proved by an affidavit of the process server, so that the matter can proceed even if he does not attend court on the date of hearing.

Section 6(2) of our Act goes further and states that the presumption in section 6(1) shall not apply, if, during the period of your conception and carrying of the child, you and your ex-husband were living apart pursuant to an oral or written agreement of separation, or under a decree nisi of divorce, made by a competent court or authority in Jamaica or elsewhere.

As you can see, the subsection is really not so stringent that you cannot move to register your child in Jamaica anyway. Here, the presumption that the baby is your ex-husband’s would not have applied, as you had your decree nisi.

Section 6(3) relates to circumstances where the child is born within 10 months after the dissolution of the marriage, by the mother’s death or otherwise, and after the mother has married again, in which case there will be no presumption between the mother’s current husband and her former, as to who is the father of the child. That such a question must be settled on a balance of probabilities, however, files for a resolution.

So Mother, in my view, you can do something in Jamaica, if your interpretation of the US law is correct, (which you really should check with the court that handles family matters in the state in which you live, to be absolutely sure that there are no provisions to oust the presumption of your ex-husband’s paternity of your child as there are in Jamaica). You must be sure, as you have very little time left to effect your child’s registration of birth, and if the USA’s laws are in line with ours then you may not need to make any application to a court in Jamaica first.

Anyway, if you must have a court signed and sealed declaration to ensure the registration of your child’s birth in your state in the USA, then you must act quickly by you or your husband retaining another lawyer to act for you (as your former one told you there was nothing he could do) to prepare the application for a declaration and necessary consequential orders thereto, so that your child’s birth records and certificate will contain the correct information of her actual father, which she is entitled to have as a right.

You or he, whoever is the applicant, should support the application with the DNA test I mentioned earlier. It must be done by a reputable laboratory and authenticated by the designated officer’s signature. It must be exhibited in your affidavit in support of your application, or to your husband’s affidavit in support of his application.

If you decide to make the application then your ex-husband would be the defendant, and you can add and serve your husband as a person with an interest being given notice. This would enable your husband to file an affidavit about his interest, and that he agrees with the application and consents to a finding that he is the biological father of the child, and for the orders sought to be made. Or you can have both your ex-husband and your husband as defendants in the matter, and your husband would again be able to file an affidavit agreeing with the assertions in your application and that he agrees that the declaration sought ought to be granted, and also agrees that the necessary consequential orders sought ought to be made. He can then exhibit the DNA test results in his affidavit.

If your husband makes the application for a declaration that he is the father of the child for any necessary consequential orders to be made, then you and your ex-husband would be the defendants in the matter and he must then exhibit the DNA results in his affidavit in support of the application.

I suggest that the application be made in the Family Court as it is more likely to be heard more quickly than in the Supreme Court, although, in the latter, the registrar or her appropriate deputy or court administrator can be urged to find a date for it to be done very quickly because your daughter’s 1st birthday is fast approaching. Regarding the USA’s laws in this instance, some answer ought to have been sent before now.

I hope I have answered your query clearly enough for you and your husband to understand and be able to act on my suggestion as quickly as possible.

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. 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.