The Maintenance Act: Is it working?
March 2, 2003
Every day there are women and children sitting under the Georgetown Magistrates' Court hoping to collect money from fathers who have been summoned to pay 'child support.' The law is designed to ensure that a single parent (usually a woman) receives some measure of financial support from the other parent (usually a man) to maintain their child or children. But does it really work in practice?
According to Attorney-at-law Anande Trotman, the law only looks good on paper, but is not working well in practice, and she would like to see a special agency set up to assist women (or men) seeking maintenance for their children.
She said that under the law both parents are obligated to maintain every child born in or out of wedlock until the age of sixteen or longer, if the child is physically or mentally handicapped, unable to maintain his or herself, or is furthering his/her education.
Even children whose father and mother are separated but are living with one or other parent at the beginning of a new relationship and have been accepted by the step-parent as a child can be maintained by the respondent, she said.
The applicable law is the Maintenance Act (Cap 45:03), which provides for both men and women to apply for the maintenance of a child, although it is more likely for a woman to sue than a man. The minimum amount of money that can be paid for a child per week is $1,000, but the sum could be as high as $25,000 per week, according to an amendment to the Maintenance Act.
Trotman said that the procedure is for the woman to report to the Maintenance Officer with the child/children's birth certificate(s), and if she's married, with her marriage certificate. She then fills out an application form - one for every child. If she's married one application form will cover all the children. After that, she goes to the Magistrate's Court to give a sworn testimony of the facts on the application, which then goes back to the Maintenance Officer, who prepares a case jacket and registers it with a file number, following which a summons is prepared. After the magistrate's signature is affixed the summons is sent to the appropriate police station to be served on the father of the child to appear in court on a said day at nine o'clock in the morning.
According to Trotman, it is always better for an applicant to have a lawyer, which would give them a fairer chance where judgement is concerned.
Once all parties are present in court the magistrate can then proceed with the matter and make a judgement. Not always will the matter come to a speedy conclusion, because the applicant will have to prove just cause as to the amount being asked for, and the respondent has to have the ability to make the payments on a weekly basis. This Trotman says, is sometimes very difficult when it comes to a self-employed person as they can always plead that their business is not making money and as such the man will not be able to honour the obligations. However, she went on to remark that some fathers don't put up a fight; they agree to pay whatever amount is requested by the applicant.
In cases where the respondent has a permanent job, a job letter or a pay slip may be requested as evidence of ability to pay, and in some cases the monies can be deducted from the person's salary and paid directly to the Maintenance Officer at the Magistrates' Court for the applicant to collect whenever he/she sees fit.
While it is customary for persons who had been involved in a casual relationship to sue for maintenance, married women who are going through a divorce also sometimes go to the magistrate's court for maintenance. This, according to Trotman is much cheaper than going to the High Court.
However, getting a man to attend court for the hearing in the first instance presents problems for some women. One correspondent to this newspaper wrote on June 3 last year that when a summons was issued for the father of her child to appear in court after she had applied for maintenance, he turned up, but denied paternity.
After that hurdle was eventually overcome, and he was summoned again, the man absented himself, and stayed absent for the subsequent three hearings. On the last occasion, the magistrate informed the mother that warnings had been sent to the child's father twice. However, it seems that the ineffectualness of these did not discourage the magistrate, who "out of the kindness of his 'masculine' heart" sent yet another warning.
This was in spite of the lawyer's objections and the mother's obvious "disappointment." She went on to say that she felt so "sick, tired and fed-up" with the justice system, that she could "see clearly why some people take the law into their own hands."
While there are some 'deadbeat dads' who do not turn up for the initial hearing, for most women the problem comes at a later stage, after the magistrate has made the order with regard to maintenance. While some fathers are undoubtedly responsible and reliable, some simply don't make the payments, or at least, if they do, don't make them consistently.
In another letter published by Stabroek News on May 23 last year, a helpless woman wrote about how an arrest warrant was issued for her child's father because he was in default of more than six months' support payments. He did turn up in court, but she said that the magistrate called him into his chambers and spoke to him. When he came out he had a smile on his face and then he left. Despite proffering a letter from the Collections Office indicating that the child's father was a constant defaulter, he was still given two months to pay.
She went on to explain that the runaround begins when a warrant is issued for the man, and when the police go to his house, he's not there. She said that sometimes the warrant disappeared and then she had to seek a new one and ask the Commander on the East Coast and the Commander on the West Bank for help in getting him arrested, because he worked all over the country.
The mother continued: "After a few months he's caught, goes to court, tells a sad story and lies about his income and then gets however much time he asks for.
By the time he has paid after that warrant has been served, months have passed, and you have to get another one."
She concluded by wondering whether it was all really worth it, because in any case all she got was 1/5 of her child's expenses, and she had the expense and time of securing the warrants and travelling up and down to try and get the father arrested.
Another mother told Sunday Stabroek that she had taken her children's father to court in July 2000, and got a maintenance order, but that he had not been paying. Arrest warrants had been issued, but every time she went to the station (on the East Coast, name provided) to find out if he had been taken into custody she was told that the police could not locate him, even though his residence was known.
She had two children for him, she explained, and he had $207,000 outstanding - and even that was only up to September 4, 2002.
On one occasion when she did succeed in getting the father into court on an arrest warrant (no thanks to the police station earlier mentioned) he paid a part of the money, she said, and promised the magistrate to pay the rest at a later date, but never turned up to do so. "It's too much hassle to get child support; sometimes I feel so frustrated, but what can I do, it's not for me, it's for my children."
Trotman said that the law has provided for the children whose parents do not live together, but that it only represents "a great development for the children on paper," and many times it is not fulfilled.
In addition, Trotman observed that some women don't realise that if they decide to make up with the defaulter and subsequently break off the relationship, the old order is no longer valid and they have to repeat the whole process again.
In view of the fact that the problems cited above occur on a regular basis she would like to see the Ministry of Human Services in conjunction with the Guyana Police Force establishing an agency to deal with 'deadbeat Dads,' and really put children first. (Angela Osborne)