DNA proved he’s not the dad, now he wants to sue
Dear Mrs Macaulay,
I live in the United States (US) and my ex-fiancée and her child live in Jamaica. As soon as she told me that she was pregnant, my family and I started supporting her, in cash and kind. I paid for her entire doctors’ visits, medications, etc. I paid for her to have the baby privately. The child is now four years old, and I started the paperwork for both of them to join me in the US. It was at that time that she confessed that the baby was not mine, and a DNA test confirmed this. I want to sue her for the money I spent, as well as for emotional distress. She refuses to pay me back. What are my chances of winning?
What an unfortunate situation you were put in by your ex-fiancée! It is absolutely clear that you were thrilled with the news from her that you were to be a father, and so were the members of your family.
You said that you started the paperwork for her and the child to join you in the United States of America and that was when she told you that you were not the father of the child. This statement leads me to believe that it was when she was forced to do so, that she admitted her lies to you for all those years and exposed the fact that she had acted fraudulently in that regard, and through this, obtained unjust enrichment from you and your family in monies and in kind for almost five years. You must have been devastated and afterwards quite angry.
You say that you wish to sue her for the money you spent (and I assume that your family members also feel this way) but you have not informed me whether, in reporting and registering the birth of the child, she named you as the father of the child and whether your name and particulars appear on the child’s birth certificate. This is an important fact for me to properly advise what legal steps you would have to take before you file a claim for the reimbursement of the money you provided for hers and the child’s maintenance.
If your name is on the birth certificate, this would be prima facie proof of her false and fraudulent assertion to you, and you would have to show that she knew that her assertion to you and her declaration on reporting the birth to the registrar of births was false from the beginning. It was her legal duty to report the birth as you were not here to do it with her (this I assume to be the case), and if she requested of the registrar upon her report of the birth that your name be entered and/or if you acknowledged at that time that you were the father based on her false assertion to you, your name would be placed in the birth records and appear on the certified certificate of birth.
If you are on it, you would have to apply to the Family Court for an order that your name be removed from the birth records and the birth certificate, and the necessary consequential orders directed to the Registrar General of Births and Deaths, and the mother, in order to effect the removal/cancellation. The Registration of Births and Deaths Act provides for such actions to be taken in section 19B(2), and in the provisions relating to unmarried parents, for a new certificate to be issued without the name of or name and particulars of such a person.
It also provides that if a person ‘wilfully’, in order to have a person registered as the father, gives the registrar information the reporting parent knows to be false, or does not reasonably believe it to be true, she shall be guilty of an offence in a parish court, or the Family Court, to be fined, or to a term of imprisonment. The criminal prosecution would not give you your money back, because it is to penalise the offended for breaching the law.
You could, however, use such a conviction if and when you file your civil claim, as it would prove her intention to deceive or act recklessly, not caring whether it was true or false. She could have had a DNA test done after the birth and thereby set you right by telling you the truth then.
Anyway, the Children (Guardianship and Custody) Act has a provision in section 13, giving the court power to order repayment of the costs of bringing up the child, when the parent who had the legal obligation to meet these costs, in your case it was the mother and the biological father, does not. In your case she engineered the situation which caused you and your family to meet all her costs and those of the child until he was over four years of age, and she did not willingly tell you the truth but she only did so because of your filing for she and the child to join you in the USA, when she knew that the truth would come out, and it did after a DNA test was done.
It could be argued that she intentionally allowed her child and her living expenses to be paid by you, well knowing that you were not the father and therefore under no obligation to meet such expenses without your full knowledge of the facts and agreeing to meet the obligations. It is clear that you did not consent to be defrauded in the way you were, and you ought to retain the services of an attorney-at-law and give the lawyer all the facts and also a certified copy of the child’s birth certificate. You can apply for it online.
I cannot answer your question as to the chances of your success, because I do not have all the facts. This answer you must get from the lawyer you retain, and after you have related all the facts and supplied the copy of the child’s birth certificate after his or her due consideration of the whole circumstance.
I wish you 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.
Margarette Macaulay
