MCGREGOR
SOMETIMES "CLOSET dads" (men who do not accept paternity) are in the dark by design, rather than by choice. They are left to hang in those closets because there are "designing women" in our midst who fabricate convenient "jackets" to fit the man who is best able to make financial provision for a child, without regard for the child's biological father.
An obvious wrong is wrought upon a father and child for being denied the opportunity to share their natural relationship, whether due to deceit or error. Despite the adverse legal and social consequences of the failure to right this wrong, a woman is not saddled with a legal obligation or penalty. However, the Status of Children Act provides an opportunity to shed light on the issue. It outlines the procedure for ascertaining paternity and some circumstances in which it must be determined.
PRESUMPTION OF PATERNITY
Paternity may be established by scientific methods, or by legal presumption. For example, there is a presumption that a child born during the course of a marriage or within 10 months after the dissolution of that marriage is the child of the husband. This may be rebutted by evidence to the contrary, but it will not even arise if the couple was separated during the time within which the child must have been conceived.
SCIENTIFIC PROOF OF PATERNITY
The court has the power to direct that blood tests be taken to show whether a particular man is excluded from being the father of a child. However, a deoxyribonucleic acid (DNA) test is the most reliable scientific method of establishing paternity. If the results of a DNA test shows that a child's DNA does not match that of the alleged father, he will be excluded 100 per cent from being the child's biological father. When the DNA of the child matches that of the alleged father, it proves paternity by a probability of 99 per cent or greater. DNA tests cost in the region of US$500.00 (J$3,200).
THE LAW
The courts use both scientific and factual bases for determining paternity pursuant to the Status of Children Act, although there is no reference to DNA testing in the act. Paternity may be established factually by proof that the father's name is endorsed on the child's birth certificate. Alternatively, the Court may accept an instrument signed by the child's mother, and any person acknowledging that he is the father, if it is signed by both persons in the presence of a justice of the peace, clerk of the court, registered medical practitioner, minister of religion, marriage officer, midwife or headmaster. A declaration of paternity made in another jurisdiction will also be accepted as evidence.
Section 10 of the Status of Children Act (which has been amended by the Maintenance Act) provides for applications to be made to the Resident Magistrate's, Family or Supreme Court for declaration of paternity by any of the following persons:
* A woman who alleges that a named person is the father of her child. She may even make this application before the child is born.
* Any person who alleges that the relationship of father and child exists between himself and any other person
* Any person who has a proper interest in the determination as to whether the relationship of father and child exists between two named persons.
Applications may be made even after the death of the father or of the child.
WHY DECLARATIONS OF PATERNITY ARE USUALLY SOUGHT?
The need to obtain and order for maintenance of a child is a strong motivating factor for seeking a declaration of paternity. It is also quite common in cases where the alleged father has died intestate (that is, without leaving a will), because the Administrator General's Department will not make a
testamentary disposition for the benefit of a child in respect of whom paternity has not been established.
DNA testing may be done at the Blood Bank and other laboratories independently of the courts.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
