Dear Mrs Macaulay,
I have a 12-year-old son whose father is in Guantanamo Bay, Cuba. About eight years ago I took him to the court in St Thomas and he was asked to pay $1,000 per week. He complies with this order sometimes and I try to make up where he falls short. When the child was in grade six, I asked his father to increase the amount of money and he said when things got better. Last January I went back to the court office and took out a summons for him to return to court in order to get an increase. When it got to the police station, a friend of his who works there informed him that it was there and he started hiding until the date passed. I went to court and another one was sent out but he left the island before it could be served. I have not seen or heard from him since. He sends money whenever his mind tells him to, which is not very often. Is there any way I can get some help in order to have a warrant served on him for him to report to court so I can get the increase of my son? He came to Jamaica three times since he left but I never know when he's coming, where he stays, or even when he leaves.
Thank you for your letter. It is a great pity that you waited so many years after you obtained an order for maintenance to try to get it increased. You could have and should have applied for an increase of this sum long before last January. You could have applied for this every year or every other year, due to the increases in the cost of living. The fact that you had an existing order should have led you back to the court rather than asking him for an increase when your son was in grade six.
It is a good thing that you decided to go back to the court. Are you saying that a police officer at the police station informed him that a summons had been sent there? If this is so, what did you do about it? Did you report the matter to the officer in charge of the station or the Police Complaints Authority, so that the matter could be investigated and action taken against the culprit?
If it was a police officer, to my mind such an act was much more serious than if a civilian had done so. It would mean that an officer, who is sworn to serve and protect, actively and intentionally interfered with a legal process and therefore impeded the course of justice. It is even more serious as it must have been known by such a person that the result would be to the detriment of your son, a minor child.
This is why you ought to report it and see that such a person answers for his wrongful interference with your legal process for your son's needs.
Time to file
You have asked whether there is some way in which you can get help to have your summons to vary the existing maintenance order served on the father after what happened and his successful avoidance thereafter. Since you seem to be unable to obtain any information about when he is here in Jamaica from Guantanamo Bay, you have to find a way to have him served there and thereafter to be able to obtain an affidavit of the service upon him to be filed in the court, so that your application can proceed, even if he does not attend court on the day of the hearing.
Well, my dear, you must first, in having your summons re-issued at the court, inform them of the fate of the summons which had been sent out last January and tell them that since you are unable to find out when he travels to Jamaica as he is actively avoiding any service upon him, that you want to have it served upon him in Guantanamo Bay. I hope you know his address there, otherwise you will have to apply to the court for an order for substituted service upon him there by publication in a newspaper there which you know he reads or that it would be likely to be brought to his attention, as it is the one with the widest publication.
You could also check with the United States Embassy and seek their help and advice about the possibility of you effecting service upon him in the US territory of Guantanamo Bay, Cuba. They may be able to assist you and/or the court to effect the service there.
Our Ministry of Foreign Affairs and Foreign Trade may also be able to give you information and assist you about this. However, first deal with the court because the clerk of court would have all the information needed about serving persons in Guantanamo Bay. I am sure you are not the first or only claimant in the Family Court jurisdiction who has had a respondent residing in Guantanamo Bay, and on whom legal processes have had to be served. So, my dear, do not be afraid. Go and make your enquiries and disclose fully what happened with the summons at the police station.
Your legal options
If you contact all the offices I suggested and get your summons varied, then please, if and when the matter is being heard, inform the court about all he did to avoid service and how long he successfully did so. Then the judge will be fully informed about the kind of person she or he is dealing with, so that time will be taken to consider how best to protect your son's interests by ensuring that his father meets his obligations to contribute appropriately to his maintenance.
This is important because I do not believe that Guantanamo Bay and Jamaica have a reciprocal agreement for the enforcement of orders. This means that enforcement would have to be done only here in Jamaica. If there is such an agreement, then the order can be enforced against him in Guantanamo Bay as well as here. You can ask the Ministry of Foreign Affairs whether there is such an agreement between Jamaica and Guantanamo Bay.
I have told you all the possible offices and places where I know you can obtain the information and assistance you will need to effect service on this man, because I think you ought to do so yourself and I wanted others to know about these places to obtain similar information. I wish you success in you quest and I hope that your son will obtain the support which he should get from his father.
So, good luck 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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give personal advice.
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.