DEAR MRS MACAULAY,
After years of wrestling with the father of my son over child support and custody, I was recently successful in getting a child support order being granted against him, a United States (US) citizen, in the US courts. I had an order from the Supreme Court in Jamaica for several years, but the father had stopped paying and there was nothing I could do locally, as he didn't visit Jamaica. So he didn't pay in full for a couple years, and only paid sporadically for others, until I got frustrated and contacted the child support offices in the state where he lives (not a reciprocating state with Jamaica). Anyway, I had first sought to have the Jamaican court order recognised and enforced in the state he lives, but instead I was granted a new hearing by telephone, and an eventual child support order with wage garnishing. I now get weekly child support for about the same amount the Supreme Court had ordered. However, while the Jamaican order goes up to age 23, or college, the US order goes up to age 18 and makes no allowances for college. My son is now 12. What can I do to ensure that my son is covered for college when that time comes? By the way, I have never gone back to the Supreme Court to try to cite him for contempt, because it would just be a waste of money since the father is not Jamaican and never visits Jamaica.
Additionally, the Supreme Court order also covered visitation. Does the fact that he has breached one aspect of the order mean that I can nullify the visitation aspect? Or, even though he has decided to stop paying, as per the Jamaican order, should I still maintain my part of the order that directs me to send the child to visit him at specific periods throughout the year?
It is very good that you sent your letter in to me as you are the exception in recent years who has shown the proactive initiative of making contact with the relevant child support office in the state in which the father of your child resides, thereby obtaining access to the relevant court there via telephone contact to make an application there for maintenance for your child. You also further obtained a garnishee order whereby the father's employers are directed to deduct and pay over the maintenance sums from his wages before they are paid over to him. It is really praiseworthy of you, especially as the father resides in a state which does not have a reciprocating agreement with Jamaica, whereby their respective court orders would have been enforceable in each place. As a result, your Supreme Court order could not be enforced there and you cleverly took matters in hand and acted. This is great and I hope more mothers would emulate your actions and also be proactive on their children's behalf.
You were able to obtain a garnishee order in your US application, which you were not able to obtain in your Jamaican Supreme Court order as the father was and is not resident here in Jamaica and he is not resident in a reciprocating state with Jamaica. You obtained the advantage of the very important garnishee order by applying in the court in his state. You however, could not obtain there the extension of the maintenance order for your child during the period of tertiary level education or training to completion, or until the child obtains the age of 23 years of age, whichever is sooner. This legal provision exists in Jamaican law but it seems not to be the case in the father's residential state.
The answers to your questions are, as you well know, very clear. Your anxiety about provision for your child during university or training college years is well founded, because there is no legal provision for it to be included in the US orders. Then, this Supreme Court order exists and is legal and binding on you and because he is out of the jurisdiction and there is no reciprocating treaty between Jamaica and the state in which he resides, enforcement of the Supreme Court order against him is mute at this time. But if he ever comes to Jamaica at any time before your child attains 23 years of age or while the child is engaged in tertiary level education or training, you can actively pursue enforcement proceedings of the order against him. Also, if your child has the opportunity to pursue tertiary level education or training in a reciprocating state, you can try then to have the Supreme Court order enforced in such a state, and you must make full disclosure of the other order with the garnishing of wages by his state's court. You could then seek, through the usual processes, to have the extension order enforced based on the existing reciprocal agreement. If this does not exist, you can only hope that through the relationship which would have developed between father and child over the years, that he would willingly contribute to the child's undergraduate education or training.
To your second question, the answer is no. You see, the obligation to contribute to the maintenance of a child is one thing, and the right to access is another. They are not dependent on each other. Both parents have the legal obligation/duty to provide for their child or children. Then they have a right of access to their child or children. It is also the child's right and in their best interest to have access and a relationship with the non-custodial parent. Even more serious and important is the fact that you were directed in the order to send the child to visit him at certain times in the year. The legal obligation is on you and you do not have the power or authority to “nullify” it. This can only be done by the Supreme Court, but on legally acceptable grounds — and his lack of payment is not an acceptable reason in law for this to be done.
You mentioned that you did not go back to the court to apply for a finding that he is in contempt of the court order. It is for the court which made the order to act to decide whether there are acceptable grounds to vary or discharge any order or a part of any orders. You are legally obligated to obey the part or parts of the court orders which direct you to do or refrain from doing anything, otherwise you will be in breach and be acting contemptuously. I should say that if you decide to seek a contempt finding against him, as he is not in a reciprocating state, you are aware this is a no go. It will also be the case if you apply to have the order for his access varied or discharged, thereby freeing you of the obligation to act on it on the ground that he had failed to pay his maintenance sums and you had to obtain a US order for this.
Remember that access is not only for his benefit, but also for the child's, and it is in the child's best interest to have a relationship with his father. It is also your obligation and legal duty to ensure that this occurs. In fact, one sometimes hears in matters of access that the child does not wish to go to the other parent, and when this is said in court by the custodial parent, the judge would give the custodial parent a lecture that they must see to it that the child goes and that they must not in any circumstance say any critical or bad things about the father to the child. Parents should understand that a child has no part to play in what happened between the parents. They should be kept out of all bitterness and anger between the parties.
You have done wonders by your initiative in obtaining the US court order and I am sure you will do all that you can in the best interest of the child.
I hope that I have clarified matters for you and wish you and your child 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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.