Adoption without dad’s consent?

Dear Mrs Macaulay,
The father of my two last children would like to adopt my other kids to help with my financial burden. Is it possible to get this done without the consent of their biological father? He’s not involved whatsoever, and hasn’t been providing for them for the past six years. I have not attempted to take him to court because he lives a distance away from me. I would like to move forward but we have talked about adoption and he said no, so I would like to know how to proceed.

You say that you have not attempted to take the father to court because he lives “a distance away from me”. This decision and attitude of yours is extremely irresponsible and dismissive of your children’s legal rights and entitlements. Laws were passed and are in effect for parents like you, of children whose fathers do not provide any support for their necessities, or have any relationship with them. It is arguable that you have been enabling their father to avoid his legal obligations to contribute to the maintenance costs of his children and to have some access time with them, so that they would get to know him and he them, in a parental/children relationship.

People tend to harp about their parental rights and ignore the fact that children have legal rights as well, which their parents are legally required to uphold.

You failed your children by deciding not to use the processes which exist in law, by deciding that their biological father lives “a distance away” from you. With all respect, this is ridiculous from you, their mother, and amounts to the fact that you and their biological father are both responsible for the continuance of the denial of their rights.

There is nowhere in Jamaica which can be said to be too far for a legally filed process to proceed to completion. Many mothers in a similar situation as you, with dads even residing abroad, have filed and pursued applications on behalf of their children.

It seems that you did not even go to the Family Court’s office for your parish to speak with and find out the steps which could be taken with their assistance to bring this defaulting father to the court and even if he fails to appear after being served, the necessary orders could have been made in default of his appearance and he would, after an original or certified copy of the orders is served on him, have been obligated to obey them or be arrested on a warrant and brought before the court to explain the reason for his disobedience of the orders or be detained until, or be given another date for him to do, what the orders required him to do.

You failed to do any of the above; in fact, you do not seem to realise that you do not in fact have sole legal custody of the children, unless a court order says so, and you have not even applied for this. The result is that their biological father still shares with you the right to legal custody of them. That is, that you both have the right to make all the necessary important decisions about how the children should live their lives.

I am sorry that I have gone on so much about your failure to act, but you decided to do nothing and all processes in the Family Court are done free of any charges. Yet you seem to think that their father’s legal rights and obligations for them can be swept away by your current babyfather applying to adopt them, even despite the fact that you do not have sole legal custody and he has not agreed to consent to any adoption when you and he talked about it.
You clearly know where he resides and have been in contact with him throughout.

So what should you do if you eventually wish your plan to succeed? Well, you must use the laws which exist to ensure that your children’s rights are respected and upheld to their benefit. You must therefore first go to the Family Court for your parish and apply to secure your legal orders to enable you to be the parent with sole legal custody and care and control of your children. You really now only have de facto custody and care and control of them (and your current babyfather could also be in the same de facto position as you). But you say that he wants to adopt them so that he can help with your financial burden, from which I conclude that he has not assumed to date any responsibility for them.

You, their mother, must have the legal orders which give you the sole and only legal right to make all the important decisions about how they live their lives. You may, after some time, conclude that it would be in their best interests that they be adopted by your current babyfather. You would have the legal order to prove then that the biological father has no say in the matter, which would assist in the adoption process.

In your application for sole legal custody, care and control of the children, you can call evidence to prove that the biological father had abandoned or deserted his children, and that he is an unfit parent, wherefore you ought to be granted sole legal custody and care and control of the children. Remember, the order must be “sole legal custody” and not just “custody”, so you would legally and factually have the status of being the only person entitled to make all decisions relating to these children’s lives.

Please be aware that when you apply and the court is hearing your application for sole legal custody and care and control of the children, that the judge may insist on the making of access and maintenance orders their father. This latter would assist you greatly in proving his failures/disobediences, in order to establish his desertion or abandonment of his children, if the need arises for you to so prove.

So you must go to the Family Court for your parish and proceed to obtain the legal orders for the full and sole legal custody of your children.
There is no other way that you can avoid the biological father having a say in whether or not his children should be adopted by another person, save that his parental rights have been curtailed or overridden by an order of the court in your favour.
This is way you must proceed and go to the court, which you should have done long ago. Do so now please so that your life and that of your older children can be improved.

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.