Paternity, Child Maintenance & Court orders –Part 3
The economic impact of the pandemic has been felt across the globe and not just by those who were already trying to make ends meet. Some parents have seen a reduction in their income while others have completely lost their income. What impact does this have on existing, and new maintenance orders? The legal obligation to maintain the child remains. What if a parent lives overseas? Maintenance orders can still be made.
You’re an unemployed parent, now what?
In a previous article, we mentioned that the law shares the responsibility for maintaining a child based on the capacity of each parent to provide for the child. Ideally, the cost of the day-to-day care of the child, and other expenses such as that for education would be shared equally. However, the law recognizes that doing so may not be feasible. This is why the law requires a consideration of the capacity of the parents.
A parent’s capacity is not limited to actual, or current earnings but also the potential to earn. An unemployed parent who is capable of working may then be viewed as having an untapped potential to earn. This potential may be accounted for as actual earnings. The court will also consider each parent’s current, and future assets and means. It would then be incorrect to assume that being unemployed prevents you from being ordered to make payments towards your child’s maintenance.
Parent & child moving overseas
We have certainly heard of persons giving up on receiving monetary contribution because the paying parent is in another country. The parent living another country does not remove the legal obligation to maintain the child. In fact, there is no harm in settling a maintenance order before the parent’s departure. The order may require the payments to be made in the currency of the country the child lives in, and a specified account.
A parent living overseas with the child may also seek the assistance of the court in Jamaica. This parent may either come to Jamaica to get a maintenance order, or obtain an order from the country she or he lives in. Jamaica has an agreement with certain countries or, parts of those countries that they will enforce each other’s maintenance orders. In brief, the process requires a certified copy of the foreign court order to be provided to the Minister of Foreign Affairs and Foreign Trade. The Minister of Foreign Affairs and Foreign Trade will then send the foreign order to the appropriate court personnel, who will take steps to register the foreign order in Jamaica if it is confirmed that the paying parent actually resides in Jamaica.
Paying parent lives overseas
The approach of settling a maintenance order before the paying parent departs may also be applied here. Can you get a maintenance order after the parent has departed Jamaica? Absolutely. Once the court in Jamaica is satisfied that the paying parent has been served with the documents, the Court in Jamaica may proceed with the process of making an order. The other issue that arises is enforcing the order in the country where the paying parent lives. The same agreement referred to above regarding enforcing foreign orders applies here. The Ministry of Foreign Affairs and Foreign Trade would send the Jamaican court order to the relevant authorities in the foreign country to get the order enforced.
Some of the places Jamaica has this agreement with are:
- The United States of America: Maryland, New Jersey, Florida
- Canada: Manitoba, New Brunswick, Newfoundland
- Caribbean Islands: Antigua and Barbuda, The Bahamas, Cayman Islands, St Lucia, Trinidad and Tobago, British Virgin Islands
- Other countries: United Kingdom, New Zealand
If the foreign country involved does not have an agreement with Jamaica, a court order may still be obtained from the Jamaican Court. If permitted under the foreign law, this Jamaican order would then need to be registered or otherwise enforced in the foreign country.
In our next article, we will explore who other than a child can benefit from a maintenance order.
Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.