Pregnant, abused and needing support

All Woman

Dear Mrs Macaulay,

I'm currently four months pregnant and I'm living with the father-to-be but he is abusing me both physically and emotionally. He also wants me out of his place but I have nowhere to go because my mom doesn't have any space to take me in at this moment. This man doesn't give me money to go to the clinic or to eat proper food; he's even saying that he wants a DNA test after the child is born. I'm not working — I'm going to college which he knew from day one and I badly want to leave his place because I'm really uncomfortable. I want to go to the Family Court to get child support even though the child is not born as yet and also for the court to order a DNA test to prove that he's the father. I would like to know if it's possible for the father to take care of me as well until I have the baby. Is he obligated to find or rent somewhere to house me, provide clinic fees, meals, etc? I've lived with him from December 2017. Am I eligible to get support from him?

I must first deal with the physical and emotional abuse you allege that your baby's father-to-be has been and is inflicting on you. You must deal with this immediately as either or both you and the baby could be badly injured, or worse. The Domestic Violence Act applies to you as you are residing with him in his home and you are also dependent on him. It would even apply if you were only in a visiting relationship, based on the amendments made to the Act. You must therefore go to the Family Court which serves the area where you and he reside and make an application for the following:

1. An Occupation Order, which will give you the legal authority to continue to reside in his premises and order him to move out, if the premises cannot safely accommodate you both without him having any contact with you; plus

2. An Ancillary Order permitting you to use the furniture and appliances in the premises for the duration of the Occupation Order;

3. A Protection Order which can forbid him from any contact with you for the duration of the order, either in the home, your college, from following or watching you, and from coming within a specified distance from you, making persistent phone calls to you, using abusive language to you or behaving in a way predicated to cause you annoyance, or damaging your personal properties.

It should be noted also that maintenance can be applied for and granted on your application for these orders under the Domestic Violence Act. If the evidence shows that you are in need of maintenance and did not apply for this, the court of its own volition can deal with it and make an order for maintenance as its deems necessary and appropriate.

Under the Maintenance Act, since you do not qualify as a spouse, you will not be able to apply for maintenance pursuant to its provisions. You started living with your baby's father-to-be only in December 2017; you are not even near to the qualifying period to be declared a spouse. To be so declared you must have lived together continuously for a period of five years immediately before the filing of your application and you and he must be single people and have lived as if you were in fact and in law man and wife for the entire period.

So the only real possibility to obtain maintenance is for you to act at once about his violence and abuse and apply under the Domestic Violence Act for the orders as I have already explained above.

This then answers your questions about you applying for him to provide support for you.

Your statement about you going to the Family Court to apply for child support though the child is not yet born, is not supportable. Your unborn child is just that — an unborn child. You can only get child support after the birth which will produce “the child” who would then be entitled to child support; which is to say, to be maintained by both parents. The Maintenance Act provides that both parents must provide for their child as far as they are able. The court in ascertaining the apportionment must examine the respective financial positions of each and if only one is financially capable, then that one will be ordered to provide, until the other one can afford to contribute to the maintenance. So you must wait to get child support until after your child is born.

If he provided you medical (clinic) fees and other expenses connected with the expected child, these can be used in evidence to support your assertion of his paternity. He would, of course, be entitled to ask for a DNA test, the result of which would prove or negate his paternity. If and when he does, you must ask the court for him to pay the entire cost, as you are a student, residing with him in his household and dependent on him, or that you are still residing in his household pursuant to the occupation and protection orders made in your favour under the Domestic Violence Act.

I further advise you, after the birth of your child, and also when applying for maintenance for your child, to at the same time apply for orders of custody, care and control. This will enable you to make decisions about your child's development and welfare without any difficulty and/or quarrels with the father, who is already abusive and violent to you.

I urge you to go and make the applications I have suggested, and certainly if he abuses you physically and emotionally again. Please do not wait. Go to the Family Court immediately and there also relate his past abuses to the clerk.

Please do not delay and do not take the chance that he will not seriously harm you and/or the baby. Protect yourself and your unborn child.

All the best to you both.

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 personal responses.

DISCLAIMER:

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.

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