Mon | Sep 25, 2017

Laws of Eve | Whose 'jacket' is it?

Published:Monday | September 5, 2016 | 9:00 AM

In the cases I have come across, the paternity issue does not arise simply because someone is suspicious about the biological connection between a child and the alleged father. Typically, some other question, such as custody or maintenance of a child, is raised before the court, and in response, one party requests that paternity be verified.

There are some men who request DNA tests in the hope that the children will not be theirs, so that they will not have lifelong connections to women whom they regret having been with. Other men recognised, but chose to overlook, signs that children they had supported financially were not theirs, and finally decide to get answers to the questions that had been swirling in their minds. In those cases, they might have continued to provide support without trying to clear up the issue, but some form of legal action by the mothers provoke them to act.

While many DNA test results come as a surprise to the alleged fathers, many do not. Perhaps this is because the reported research that one in three Jamaican children is a 'jacket' has opened people's minds to that possibility. Or the fact that the view is not only held in Jamaica, but one that has increased prevalence in many other countries, might be the reason. Either way, the 'jacket' phenomenon is no longer rare. For example, it was reported that, in California, there was a 20 per cent chance that a child born to a married couple was not the biological child of the husband; and in a contested paternity hearing, there was a 33 per cent chance that the alleged father was not the natural father*.

Discovering that there is no biological connection is likely to have a devastating emotional effect on the child and the alleged father. The mother may also be ordered to repay the child support she has received from the alleged father. She may avoid that outcome if she is able to show that she had made a mistake in naming the father. However, if the alleged father is able to prove that the mother made a statement regarding the child's paternity, which she knew to be untrue, and the alleged father relied on that statement to his detriment, he is likely to succeed in his claim to recover damages. In such cases, which are now popularly referred to as paternity fraud cases, an interesting approach was recently reported on bbc.com - 'German plan to force mums to name lovers in paternity cases'**. According to the report, the German Ministry of Justice has drafted a new law that will give an alleged father the opportunity to seek repayment of maintenance from a child's biological father.

 

LIMITED COMPENSATION CLAIM

 

Although the existing law allows the alleged father to make such a claim against the mother with no limit as to the number of years' maintenance he could claim, the new law will require the mother to provide information about "who has lain with her during the conception period". It will also limit the financial compensation claim to two years' maintenance costs.

The move to change the legislation was prompted by a ruling in the German court that there was no legal basis to force the mothers of jackets (called 'cuckoo children' in Germany) to name the biological father.

In Jamaica, claims for financial compensation are rare to begin with, and the men who manage to shed the jackets are usually relieved that they are able to escape. It would be interesting to find out whether Jamaican men in such situations would want to take the matters further, to be able to identify the biological fathers and also sue them!

(* - fathersforlife.org)

(** - This article reported that, "A 2005 review of studies into so-called paternal discrepancy published in the British Medical Journal found that the rate was around four per cent - meaning one in 25 children is biologically fathered by someone other than the man who believes he is the father."

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.