DNA test says he’s not the dad

Dear Mrs Macaulay,

I am a father of four young children and a United States (US) resident. All my children were born in Jamaica, and I am in the process of filing for them. I found out through a private DNA test that one of the children is not mine, but this has not changed anything. I am on the child’s birth certificate. Should I seek to adopt him to ensure that he can migrate? Or wait to see if the US will request their own test? What are my options, so this does not drag out, or that he is not left alone in Jamaica without his siblings?

What a hornet’s nest you opened when you sought and got the private DNA done.  Was this done for all the children?  I cannot understand why you did so because DNA tests are not mandatory for fathers filing for their children’s residence visas. It is not a legal or regulatory requirement.  I do hope that you have not disclosed this test to the authorities because they only accept their own laboratory test results anyway.

The DNA test, I understand, is often requested as secondary voluntary evidence if the primary documents, that is to say the birth certificates, marriage certificate or certified copy of decree absolute if the parents are divorced, are deemed insufficient or suspicious.  Some think that DNA test results may expedite fathers’ applications for their children in circumstances when there is no evidence of a biological relationship.  BUT, in your case, you are the legal and factually recognised father of this child as is evident from his birth records and certificate.  You are under Jamaican law this child’s legal father who is entitled to all the legal rights of custody and care and control, and every one of a father’s obligations for his care and upbringing.  You have been exercising your fatherly rights and you have been meeting your obligations also.  He has been an integral part of your family as have been your other children.  He is therefore in law and in fact a child of your family. With you as his unquestioned registered father, the legal position in Jamaica is that prima facie, you are his father as long as the registration remains unchallenged by you or anyone else.

You have not questioned or applied to the court to have your name removed from his birth certificate and I applaud what you say and your concern that your application in relation to him does not fail and he is left alone in Jamaica. I assume that your wife is in fact his mother and you are both going to continue to care for your children in the future as you did here.  You have accepted the child fully and completely and you are determined to continue to be his father and not cause him to be excluded from your family.

You have asked whether you should adopt him?  I do not see how this could be done by a father registered in all the child’s birth records as his father!

This fact of your registration as his father is clear proof that you are his legally recognised father.  It would mean that you will have to apply to be removed as the registered father and when your adoption application is granted (which takes some time), part of the adoption order would be that you then be entered on his birth records as the adoptive father and new birth certificates issued, on which would appear the fact and date of the adoption order.  This is a very long and onerous process.

By the way, your private DNA test will not be recognised or used by the immigration, as if requested, this must be done in one of their accredited laboratories. The result must be at least 99.5 per cent to be accepted by the US consular officers.

I would suggest instead that you proceed with your application and produce all your children’s birth certificates without any distinction of the concerned child.  Also remember that requests for DNA testing by the US officials are not done pursuant to any law or regulation, so it is not mandatory but entirely voluntary and so when a request is made the person is not bound to agree and can refuse based on religious grounds or specific health taboos or the fact of your family life with your children for so many years, or on the ground that you have clear primary evidence in proof of your paternity on the birth certificates of all your children and again the history of your family life with them.

I would also recommend that you have ready and at hand his medical records and school and church (religious) records which show you as your son’s father, AND definitely affidavits (notarised by a Notary Public) for use in the US to establish that they know you, for how long, and their relationship with you and your family, that they are frequent visitors to your home, that they have known all your children from birth up to the date of the affidavit,  including (name of the subject son) and they should then describe how he has lived with the family and how you have always treated him in the same way as the other children.  This affidavit could be done by a close family friend or a relative.  I also suggest another affidavit from one of your son’s teachers, principal or grade teacher who know you as his father and also one from you priest/pastor/ elder of your church or temple, attesting to the fact of knowing the boy as your son and for how long and with the addenda, in each affidavit, that he has always been treated in the same way as the other children.

You should keep these affidavits ready to produce if and when necessary to use as a last resort if you are asked for a DNA test to be done, which you must point out that you are aware that their request is not legally authorised and that your concurrence is voluntary, if you choose to comply.  And that for your child’s sake you would rather they act on your additional evidence, especially as under Jamaican law you are his legal and so registered father.  You can also point out that under Jamaican law, even if you were not on his birth records and certificate, since he has been part of your family from his birth, he would be legally “a child of the family”  and you would be legally bound to maintain and care for him; and that a court would order you to provide for him, if you failed to do so.  And, in any event, assuming that you have not told your son about the result of that test (and I hope that you have not done so), that you do not wish to hurt and traumatise him because he is your son and you have always accepted him as such and no test result can change the relationship you have with him.

Please remember that as things stand legally, you are this boy’s father and you are legally entitled to have custody of him with his mother and you are legally bound to provide financially for his maintenance and attendant expenses for his development, and you cannot just leave him out of your family and cause hurt to yourself and his siblings and for him to be condemned to a life alone here. The pain of the loss of his father and his siblings would be too much for a little boy to understand and endure.   I agree with you that this cannot and should not happen and you must do your extraordinary best to ensure that this does not happen.

I hope that you shall succeed with your applications for all your children.  Please submit your applications with all their birth certificates and all the other attendant and supporting documents in the normal way, and I see no reason why they would request a DNA test for the child you are so concerned about.

And sir, you would not be telling a lie and misleading the US authorities, as this boy is your legal (registered) and factual (has lived with you up to your application as your son) and in Jamaica he is by law your son and lived as a “child of the family”.  So please go for it, but also have the affidavits I have suggested handy, and maybe you can add to the affidavits a legal opinion from an  experienced attorney-at-law practising family law, about the law regarding being a registered father on a child’s birth records, the status of a child as a “child of the family”, and the responsibility of the father in that family vis-a-vis the child.   You would probably not need them, but it is better to be prepared, just in case.

I hope I have clarified the position for you.  My very best wishes to you all.

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 private, personal responses.