Absentee dad now wants access

Dear Mrs Macaulay,

My friend has a young child whose father was absent until recently. He abandoned her when the pregnancy was confirmed and told her to have an abortion. He told her he didn’t want a relationship with her and that the child was not his. From pregnancy to birth and afterwards, he has not once contributed to neither the mother nor child despite her reaching out to him.

 The mother gave the child her surname at birth, but now the father has come back and is threatening to be a part of the child’s life. He is demanding a DNA test and that the child gets his name, because it is his child. The mother, however, doesn’t want him in their lives. What can she do? Does he have a case? Will the court force her to do anything even though he has nothing to show of his involvement in their lives?

It is indeed admirable that you have written on behalf of your friend and her child. You say that he told her she should have an abortion, that he did not want a relationship with her, and that the child was not his.  You also added that he made no contributions towards the mother’s medical and confinement charges, or towards the costs of the maintenance of the child.  He clearly was not present at the birth because the mother had to give the child her surname when the birth was reported to the registrar who received the necessary information for the birth records.

Well, let me try to clarify the situation for you.  The law recognises the right of children to have relationships with both parents and the members of their families.  This anchors the identities of children and gives them a sense of security within each parent’s familial relationship, and which ideally ought to be peaceful, loving, caring and responsible in providing the necessities for their children throughout their development.   This is the ideal hoped for.

This father has clearly failed his child through his denial and abandonment of the mother and the child from in the mother’s womb.  I am sorry that you did not include in your letter dates and the lengths of time of his denial and abandonment.   Lengths of time are weighty pieces of evidence which would inform a judge what decision ought to be made, in these circumstances, which would be in the best interests of the child.

Anyway, here are my suggestions for your friend. The father has rights and responsibilities vis a vis his child. But  I would advise her not to just agree to let him go and do a DNA test, she must insist that the entire matter must be decided by the court and not to grant his access until it is determined that he can have this by the court and the terms fixed and spelled out in the court orders.

The Children (Guardianship and Custody) Act provides that the mother and the father of a child have equal powers to apply to the court about anything which affects the child.   This provision enables them to have joint custody if it’s in the child’s best interests.  The Act also deals with the issue of abandonment and desertion of a child by a parent, and that in circumstances where a parent, like in this case, has allowed his child to be brought up by another person at their sole expense for a particular period of time, and the court is satisfied that the parent just ignored his parental duties, then the court must not make any order for this parent to have the child delivered to him, unless he proves to the court and satisfies it that he is a fit person to have custody, having regard to the welfare of the child.

So you see, the length of time is very relevant for the judge to properly decide if the man, after his denial and abandonment, ought to have custody or any access to the child, if a court-ordered DNA test proves that he is the biological father of the child.

I suggest that the mother goes to the Family Court of her parish of residence and have them assist her to apply for a declaration of paternity with the man as the respondent, and for consequential orders for the custody and care and control of the child. Custody, care and control should be solely to the mother until he proves his worth. On the issue of his access to the child, this would depend of the age and the length of his denial and abandonment, whether he should have any (without counselling), or supervised access, and that the periods are fixed and set in the orders.

She must also apply that he pays at least one-half of the child’s maintenance. She must provide figures for the cost of the child’s occupation of her home – work this out by the number of persons there plus the child and divide the rent or mortgage sum by the total number, and one portion is what you set down for the child’s residence costs.  She must do the same for utilities, cable, and all household expenses and food and all provisions .  Then she must also keep records of  the cost of the child’s clothing, footwear, transportation, lunch money,  the cost of entertainment and amusement and snacks, the personal toiletries and hair care of the child, plus the educational expenses, medical, dental and optical expenses. The total of all these are what you put for the maintenance claim, the half of which he must at least pay, or more.

I have gone to such detail because I hope you have understood that on the face of it, that a father has a right to have a relationship with his child, but let him prove it in court so that your friend can have binding orders made to ensure that this man behaves properly if he is given access to this child.  If he disobeys any of the orders made your friend can have warrants issued against him to be arrested and brought to the court and convince the judge why he should not be imprisoned for his breaches.  In my view, the way he has behaved indicates that he needs the strictures of the courts  to force him to behave as a parent should.

I hope that I have made the legal position clear and that your friend shall ensure that she protects herself and her child as best as she can with the help of the law and by the orders of the court as she is entitled to do.

All the very best.

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.