Dad can’t afford court-ordered maintenance

Dear Mrs Macaulay,

I had a few encounters with a young lady nine years ago after which I was informed that she got pregnant. I assisted mainly financially until the child was born. She got married shortly after and my child lived with her and her husband. I continued to provide financial support. I also added the child to my health insurance at work and this continued for a little over two years until we changed health providers.

The new provider requested a copy of everyone’s birth certificates. When I asked the mother for a copy of the child’s certificate, I noticed that the surname was wrong. The mother told me that it was her sister who named the child because she thought that was my name. I had to cancel the health card to avoid being charged with insurance fraud.

My course of action then was to assist her to get my name on the child’s birth certificate and after signing all documents I asked her to bring me a copy of the new one when she got it. Suffice it to say, about two months after completing the process I was served with a summons at my workplace for child maintenance. I attended court where a female judge heard the case and upon questioning the mother as to the reason for the two surnames, she said she was not satisfied with the explanation and recommended a DNA test. This was done but I however missed the court date for the reading of same. I called the child’s mom and asked her to apologise to the judge for me and let me know the next date. When I called her the following day I was told that she didn’t say anything on my behalf because I should not have allowed my work to cause me to miss court. She also told me that a warrant was out for me.I visited the court a few days after when I got the time off from work, where I was put in a holding cell from in the morning until after 4:00 pm. When I appeared before a male judge he read the DNA result which stated that it ‘does not exclude me as being the father therefore I was the father’. He then asked what the mother was asking for to which she replied that she wanted $20,000 for the past. He tried to explain the formula to her but she didn’t grasp it so we were sent with a counsellor to come to an agreement. We eventually agreed to $8,000 per month but the judge decided that it should be $12,000 instead, although I tried to advise him that the amount he was putting forward was out of my ability to pay. I borrowed $5,000 and made my first payment and I was told that if I’m in arrears for more than two months a warrant will be sent out for me.I have another child who is living with me. This is now a hopeless case as I can provide documentary evidence that I’m unable to pay that amount which means both kids will be growing up fatherless with me being in prison. I really don’t see how this is in anyone’s best interest. Is there any way this can be resolved?

My course of action then was to assist her to get my name on the child’s birth certificate and after signing all documents I asked her to bring me a copy of the new one when she got it. Suffice it to say, about two months after completing the process I was served with a summons at my workplace for child maintenance. I attended court where a female judge heard the case and upon questioning the mother as to the reason for the two surnames, she said she was not satisfied with the explanation and recommended a DNA test. This was done but I however missed the court date for the reading of same. I called the child’s mom and asked her to apologise to the judge for me and let me know the next date. When I called her the following day I was told that she didn’t say anything on my behalf because I should not have allowed my work to cause me to miss court. She also told me that a warrant was out for me.

I visited the court a few days after when I got the time off from work, where I was put in a holding cell from in the morning until after 4:00 pm. When I appeared before a male judge he read the DNA result which stated that it ‘does not exclude me as being the father therefore I was the father’. He then asked what the mother was asking for to which she replied that she wanted $20,000 for the past. He tried to explain the formula to her but she didn’t grasp it so we were sent with a counsellor to come to an agreement. We eventually agreed to $8,000 per month but the judge decided that it should be $12,000 instead, although I tried to advise him that the amount he was putting forward was out of my ability to pay. I borrowed $5,000 and made my first payment and I was told that if I’m in arrears for more than two months a warrant will be sent out for me.

I have another child who is living with me. This is now a hopeless case as I can provide documentary evidence that I’m unable to pay that amount which means both kids will be growing up fatherless with me being in prison. I really don’t see how this is in anyone’s best interest. Is there any way this can be resolved?

It warms my heart when I hear of fathers like you, who go all out to acknowledge the paternity of their children and then go beyond this, forging a relationship and contributing to the children’s support.

Apart from having a few unprotected “encounters” with the young lady, the mother of your child, you have done and have been trying to do what is right by the child, the result of those unprotected encounters. The mother, it seems from what you say, has not done what is right by or for the child. She denied the child the right to its true identity and kept this fact to herself and unknown to you for years. She cannot say she did not know that another surname had been given to the child at birth by her sister. One must wonder how did the sister come up with that surname and not yours? Was this the name of someone who the sister knew had a relationship with the mother?

If your workplace had not changed health providers, it may have been many more years before you discovered the truth. For your child’s sake, thank goodness that you did find out.

You were a father providing for your child, but after you found out about the misnomer and enquired about it, the mother took you to court for a maintenance order to be made, even though you had been providing support.

You ask what you can do about the court-ordered maintenance as you are having to borrow and you have been warned that you could have a warrant issued against you and be detained if you build up arrears. You rightly point out that it would not be in the best interest of that child and your other child who you also support, if you are sent to prison.

Firstly, you should have called the clerk of court at the court’s office when you found that you could not make the first adjourned court date when the result of the DNA report was to be announced, instead of asking the child’s mother to explain your absence to the court. As to the order of a greater sum than you can afford which was made by the judge, this was and is really contrary to the Act regulating maintenance.

The section in the Act provides that every parent — that is mother/father, is obliged to the extent that he/she is capable of doing so, to maintain that parent’s minor unmarried child or one who is physically or mentally infirmed or disabled. The obligation of grandparents to step in if the parents fail to maintain does not apply in your and the mother’s circumstances. What then does this mean? It means that there must be satisfactory evidence of the financial capability of each parent before an order of maintenance is made. This is too often not done. Rather the judge asks the mother what sum she is asking for and then asks the father what he will offer.

This is not anywhere near the standard of enquiry required by the Act. The court must require evidence of facts which would satisfy the judge of the extent that the parent is capable of maintaining the child.

This, from what you say, did not happen in your case.

You could have filed an appeal against the order made by the judge, but you cannot do so now as the time for doing so has most probably expired. Though the court of appeal has power to extend the time for the filing of an appeal, the outcome is not certain in every such application. So what can you do now?

Well, you can apply for a variation of the order to lower it to the affordable $8,000, but you ought to file a detailed affidavit in support of your application with substantial facts and exhibits of documents in support of such facts showing your true financial position. You must put in pay slips, whatever you have regarding all your outgoings for you other child and yourself, and proof of any repayments of existing debts. In fact, you should show your whole financial position of all income and outgoings. The mother of the child must also provide such facts and in her case it would include what her husband provides towards her financial needs.

I do not know when the order was made and so I can only say that you should allow some time to pass before you make this application, say four to six months, even if, or especially if, you are in arrears. But do not wait for the warrant to be issued, go in and make your application. It would help if you can get an attorney to assist with your application, preparing it, and appearing in court for you. Good luck and do not give up on your child who is innocent of any misdeeds.

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.

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.