LAWS OF EVE - Enforcing a maintenance order in the USA

Q: Could you offer any guidance and advice how to obtain child maintenance from a child's father who lives and resides in the United States of America?

A: The short answer is that it depends on the state in which the father resides.

This reader has underscored one of the biggest problems which a parent is likely to face when the other parent resides outside the jurisdiction of the Jamaican courts. Obtaining an order may not be difficult at all; but once that order is in hand, it is hard enough to enforce it when both parties are in Jamaica, but it is certainly compounded when the object of the order is overseas. In fact, many potential applicants do not even bother to approach the court for maintenance orders when the person they want to sue is not in Jamaica.

Perhaps the only real answer to this problem lies in the Maintenance Orders (Facilities for Enforcement) Act. It allows for maintenance orders made in Jamaican courts to be enforced in some countries (referred to as 'reciprocating states' in the act). However, the act is not available in all instances. In fact, the list of reciprocating states as set out in the Maintenance Order (Facilities for Enforcement) Regulations may surprise you.

They are:-

The United States of America:

Maryland, New Jersey, Florida

Canada:

Manitoba, New Brunswick, Newfoundland, Prince Edward Island

Caribbean Islands:

Antigua and Barbuda, The Bahamas, Belize, Cayman Islands, Dominica, Grenada, Guyana, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, Montserrat, British Virgin Islands

Other countries:

Cook Islands, Baliwick of Guernsey, Isle of Man, Jersey, New Zealand, Niue, United Kingdom, Western Samoa

The noticeable absence of states such as New York and Georgia, where many Jamaicans tend to reside, makes the reach of the act quite limited. However, for those persons who may be fortunate enough to rely on the provisions of the act, it operates in the following manner:

If a Jamaican wishes to make an application for a maintenance order in the Resident Magistrate's Family or Supreme Court against someone who resides in a reciprocating state, the applicant may be able to proceed with the application in that person's absence. Evidence will be taken in the form of a deposition in writing, or recorded and transcribed before an order is made.

Once an order is made, the clerk of the Resident Magistrate's Family Court or the Registrar of the Supreme Court will certify the order and send it to the minister. The minister will then send the order through the appropriate channels to the relevant authority in the reciprocating state.

Further evidence

On receipt of the order, the reciprocating state may take further evidence before varying, rescinding or confirming the order. If the order is varied or confirmed by the reciprocating state, it can then be enforced in accordance with the laws of that state.

If a maintenance order is made in a reciprocating state, it may be enforced in Jamaica in the same way as an order made in Jamaica may be enforced there. For that reason, a Trinidadian against whom a maintenance order was made by the court in Trinidad could find that he is called upon by a Jamaican bailiff to pay maintenance, pursuant to an order which was originally made by the Trinidadian court.

The act does not indicate the time within which the minister is obliged to deliver the order to the reciprocating state; and this may raise a concern for an applicant who is desperate to have his or her order enforced. It would be helpful if some time period was prescribed for the minister to deliver a certified order to the reciprocating state.

Given the effects of globalisation, ease of travel and relocation, it is hoped that some attention will be paid to trying to expand the number of reciprocating states, so that delinquent parents can be effectively pursued.

Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Sholefield, DeLeon & Co. Comments and questions may be sent to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.