Questions about child maintenance

Dear Mrs Macaulay,

I found an article where you responded to a disgruntled mother who was frustrated with the judge’s order in the Family Court regarding a decision made on child support. This article gave me a bit of clarity, as I will be going to court on that same matter.

I have been doing my research and reading, but I have few questions I would like to ask you for clarification.

1. In the article, you said the mother did not know to object. As a civilian in front of the judge, do you have that right without a lawyer to represent you?

2. I will be filing for child support; however, I want to request joint custody of my son because as a mother it is very mind exhausting at times to always have the child. The father and I have written agreements that we would do rotation of weekends because we both are entrepreneurs. However, lately he has been ditching his rotation and I am left to keep the child no matter how mentally depressed or stressed I am, and when I request that he gets the child, I am threatened that I will be left to financially support my child on my own if I resort to the court. Is joint custody one that a judge will look into?

3. Can bringing copies of my expenses and income, budgets, receipts of necessities of the child, and proof of texted conversations with our agreement of when he was to keep the child help in the court?

4. What if the judge decides on what the father should pay, despite my receipts. Am I allowed to object?

5. Are legal aid lawyers available for child maintenance cases?

Thank you for reading my columns and for your questions seeking more clarity. I am sure that my answers to your questions will also inform and assist other readers, which is the purpose of these columns.

Answer to question one — A party representing themselves in any matter in any court has the right to be heard in the course of the proceedings. They have the right to present their side of the case, to object to any matter which in their view is incorrect, and to question the other party’s statements of their case, or any error which is being made by the other party or the judge about either party’s evidence, submissions, right or obligation. In other words, you can do what any lawyer can do on your behalf, except that a lawyer would know the relevant law, rules of evidence, the court regulations, and decided case law relevant to the points in issue in the case.

Answer to question two — You are in fact in this preamble to your question referring to care and control and access. Joint custody means that you both will make all the serious and important decisions about your child’s life and upbringing. Care and control you clearly already have pursuant to your written agreement, and this is that your child resides with you and that his father has residential access to him on weekends as agreed in your agreement. What you are therefore concerned about is the fact that your son’s father is not living up to his access obligations and that when you object to his failures, he threatens to withhold his part of your child’s financial support especially if you resort to the court. Your question is whether the issue of ‘joint custody’ is one which would be dealt with by the judge.

Firstly, the clerk of court assisting you with the preparation of your claim would include joint custody, care and control and access for the respondent father. Clearly the judge must make sure that all these issues are dealt with and orders made thereon, all in the best interests of the child. As to the father’s access, specific orders are made of the day and time the father should get the child and the day and time he should return the child to you. The date of the commencement of his access under the order will also be specified therein.

By the way, I must mention that the written agreement which you and the father made must have been made as the law specifies and each of you must have had your own respective lawyers, who must have certified that they went over the terms of the agreement with each of you and explained the consequence of each, and that they were satisfied that you each understood them. This certification of your respective lawyers must appear on the agreement, as well as your signatures. If these and all the legislated requirements were not met, then your agreement is not worth the paper it is written on, save that it would show both your intentions.

Another point is that it is wrong and illegal for anyone to threaten a person not to pursue a lawful claim in a court of law. If you fail to act to protect your son’s rights because of the father’s threats, you would be denying you son his lawful rights. In addition, you are right to insist on you son spending time with his father so that they would have a real relationship, unless the father shows irresponsible traits and conducts which are dangerous for the child and may result in some harm befalling him.

Regarding question three — Taking copies of all you have stated will necessarily be very helpful to the court in arriving at the decision in determining your son’s needs and the apportionment of them depending on yours and his father’s respective financial capabilities.

Four question four — Of course you should object, if it seems that the father would be ordered to pay less than you when he is in a better financial position than you are. But remember that you must do so with respect. If despite your protest the judge does make an order which you know is completely unfair and is not in the best interests of your child, you can tell the court that you wish to appeal the order. Then you will have to get a lawyer to prepare and assist you with your appeal and argue it in the Court of Appeal.

And for question five — Legal aid is not available for maintenance applications. One of the reasons that the Family Courts were established was to ensure that women who are generally less financially secure than the fathers of their children would have access to justice for themselves and their children. This is why a clerk of court would assist you and prepare your applications for joint custody, care and control and access and for maintenance, without any charges.

I hope I have answered your questions clearly enough for you and that you can go to the Family Court and ensure proper legal protection for your son.

All 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 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.