Mom hiding from dad’s paternity summons

DEAR MRS MACAULAY, I went to court for a declaration of paternity for a child I believe is mine, who was registered in another man’s name. The mother has avoided being served the summons, and the case is just languishing, while my child is growing up without knowing me. Nothing can proceed without the mother being served, but she continues to move around. Is there anything else that I can do legally?

I can feel your frustration from your letter firstly, about the fact that the child you strongly believe is your child was registered by the mother in another man’s name, and secondly that having filed your application for a declaration of paternity, the mother keeps avoiding service of the summons being effected on her.

You have not stated whether it is the bailiff of the court who has been striving to serve the mother, or whether it is someone else you retained to do so. It is always better to have the bailiff do the service on the respondent, and directly report to the court or to the clerk of the court.

You have not stated how many attempts of service she has avoided, but each summons would have the dates for the hearing written therein, and you would have attended court on such dates, and the court records would have this information and the number of times the judge had to order that the summons be re-issued on each of those dates. I have to assume that it was a number of hearing dates because you failed to state the number in your letter.

This was a vital piece of fact you should have stated. You state instead that nothing can proceed without the mother being served — an obvious fact — but not the number of times she succeeded to avoid service — a vital and necessary fact. The number is important because you can only succeed with the next step, if the judge considers that the mother, by the number of times and her conduct, is definitely actively avoiding getting served.

So, assuming that you have an acceptable number of times of her avoidance, you must go to the court office with your copy of your last issued summons and ask that the clerk assist you to prepare your application for an order for “substituted service“ to be published in the media (one of the daily newspapers), or upon a person who is close to the mother and who you know is in constant touch with her. This application would succeed if the judge is satisfied with the evidence from the number of attempts to serve and the mother’s conduct on such occasions, that the mother has in fact been actively avoiding being served. For the part about substituted service of a person close to the mother, you would have to give full details about this person and where he or she can be found and why you believe that this person would take and get it to the mother.

Upon the success of your application for substituted service, the order would state which daily newspaper the notice of the application should be published, the number of publications and the days, and how many days apart. You would have to take the prepared notice (which the clerk of the court would have assisted you prepare) to the newspaper’s office and pay for the number of publications, usually three. Then you must make sure that you purchase a newspaper for each of the ordered dates and do not cut out the notice from the page it appears on. You must in fact take and keep the whole page showing the name of the paper and the date of that paper and you can mark around the whole notice in red and keep it until you have all three and do the same with them, and take them all to the Family Court office so that the clerk can prepare the affidavit of their production to the court of your successful compliance with the order for substituted service.

If the court had also or only made the order for substituted service on a person close to the mother, please ask that the bailiff do this one on your behalf. It would be safer to do it this way, and likely to be successfully effected as long as you have given correct and sufficient information for the person to be identified and found. Thereafter, the bailiff will do the affidavit of such service, so that on the next appearance in court, if the mother does not appear on the hearing date which would have been stated in the documents served on the close person or in the notice in the newspaper, then the judge would proceed whether the mother is there or not, and make the necessary orders for a DNA test to be done and for the mother to produce the child at a certain laboratory on a certain date for the test to be done.

When the court receives the results, the matter would proceed accordingly, based on whether the result of the test proves you to be the biological father or not.

If the result is that you are the father, the declaration would be made and orders for the child’s birth records to be changed and your name and particulars inserted as the father. The mother would have been ordered to hand in the certified copy of the child’s birth certificate she has in her possession, as in these circumstances, new ones will have to be produced to accord with the positive result of the DNA test. You should in this event also ask for custody (joint or otherwise of your child), and access at specific times, including residential access depending on the age of the child and all other necessary consequential orders.

If, however, the DNA test does not identify you as the father, you would in any event have the certainty of the result of the test and you can at least go on with your life without the belief you have been living with continuing to plague you.

It seems from the mother’s avoidance of service, that she knows that you are the biological father of her child and she decided for reasons known only to her to name the other man as the child’s father and deny you your rights of paternity.

So, please do as I have advised and go back to the court office so that your application for substituted service can proceed as quickly as possible.

I wish you success and 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. All responses are published. Mrs Macaulay cannot provide personal responses.