Last July, a Sea Cows Bay woman obtained a court order requiring the father of her son to pay child support every month.
Since then, she said, he has only paid three times. Nonetheless, she has no plans to take him to court to get the rest of the money she is owed.
“What good is it telling [a magistrate]?” said the single mother of one, whose name is being withheld at her request. “If the fathers get arrested, us mothers still aren’t getting help.”
Unlike in other countries, there are no provisions in the Virgin Islands to garnish delinquent parents’ wages, seize their property, suspend their driving privileges, or institute some other form of non-custodial punishment. Imprisonment and fines are the only options.
And parents who do decide to take a delinquent partner to court could face a confusing bureaucratic ordeal that could take years.
Though reforms are in the works, several parents interviewed for this article reported various difficulties obtaining child support, and officials said similar complaints abound.
The problem
Family Support Network counsellor Dr. Sylvia Simmons said she frequently talks to women who have given up on forcing their children’s fathers to make payments on time.
Some, like the Sea Cows Bay mother, don’t want to send the delinquent parent to prison.
And even if the matter does go to court, sometimes nothing can be done: Legislation that took effect last October prohibits a magistrate from imprisoning a delinquent parent unless it’s proven that he or she has the financial means to pay child support.
That legislation was heralded as a step in the right direction by many, including defence attorney Stephen Daniels, who has long argued that it is unconstitutional to imprison delinquent parents who can’t afford to pay.
But in the absence of alternative measures, the law left some single parents trying to support their children with no other recourse to enforce maintenance orders.
Other parents seeking child support get lost in the system. One mother received a maintenance order in Magistrates’ Court, only to have it vacated by mistake during divorce proceedings at the High Court, according to Senior Magistrate Tamia Richards.
Retribution is another concern: A different mother told the Beacon that she was “publicly degraded” by the father on Facebook when she had him summoned to court.
In spite of such headaches, however, Ms. Simmons said single parents should tough it out.
“It’s not about you: It’s about the child,” the counsellor emphasised. “Your child has a right to financial support.”
Planned reforms
Help for struggling parents could be coming soon. Ms. Richards said legislation updating the child support system is in the works and could be implemented by the end of the year.
The first draft of the Child Maintenance and Access Act is currently being reviewed by the Ministry of Health and Social Development in consultation with the Magistrates’ Court, said MHSD Permanent Secretary Petrona Davies.
Provisions could include non-custodial punishments for delinquency, such as revoking driver’s licences or requiring community service. Such steps were recommended by the report National Policy for Gender Equity and Equality, a document published by the government in 2013 after consultation with the VI Teachers’ Union, the BVI Bar Association, and public officers.
Legislation was also promised in the 2013 Speech from the Throne by then-Governor Boyd McCleary, who said the government planned to pass a Maintenance of and Access to Children Act. That bill, however, never made it to the House of Assembly, and was it was left off the 2014 Speech from the Throne.
Government Communications Director Arliene Penn said the Child Maintenance and Access Act is expected to enter Cabinet by the end of June.
Threat of prison
In spite of some parent’s qualms, Ms. Richards added that the threat of imprisonment is also a highly effective mechanism for enforcing maintenance orders.
The Magistrates’ Court is responsible for some 1,800 child support files, and nearly every parent finds the resources to make due payments – even in cases when some owe in excess of $15,000, she said.
A textbook example of the threat of imprisonment encouraging payment occurred in 2008, when police started the operation “pay or go to jail” in an effort to collect back payments from “deadbeat dads.”
In December of that year, police arrested a 37-year-old Dominican Republic national for failing to pay $1,500 in arrears. After the arrest, the man’s friends and family managed to round up the money and the man was released, prosecutors said at the time.
Police arrested at least four other delinquent fathers around that time, though they did not mention whether the parents ended up paying their arrears.
Police Commissioner David Morris said recently that his officers still often execute arrest warrants on delinquent parents. He added, however, that looking for such parents can be a drain on his department’s resources.
“My view is that it draws us away from our key job: preventing crime,” he said. “Ideally, court bailiffs would bring these people in.”
Red tape
Though the threat of imprisonment may usually get the job done, the steps to summon a delinquent parent in front of a magistrate can be long and arduous, as former VI resident Heidi Stevens recently found out.
In 2010, the United Kingdom national separated from her husband, and received an order from the Magistrates’ Court for the husband to pay $600 each month in spousal and child maintenance fees.
But the husband only made payments intermittently, she said, and by January 2011 he owed $1,010 in back payments.
The spouses had another court hearing, where the husband was ordered to pay the arrears. Ms. Stevens, a former pastry chef at Necker Island, said she received a cheque shortly after the court order, but that it was for only $900 of the $1,010 owed.
It was then that she started having difficulties with the Magistrates’ Court staff, she claimed.
First, she said that an administrator told her that she would have to wait until her husband is three months in arrears before action could be taken for the delinquency.
This information, however, seems out of keeping with the Magistrates’ Court of Procedure, which states that if payment is as little as one month overdue, a magistrate may take action “as if such order were a conviction.”
Continued attempts to have her situation redressed were frustrated when she was unable to secure a hearing in front of a judge, she said, explaining that administrators told her that she’s not allowed to contact magistrates directly, and that she was hung up on at one point.
After a court date in July 2013 was adjourned because the father was off island, Ms. Stevens said she finally was able to appear in front of Ms. Richards in September 2013, and that the magistrate ordered the father to pay all arrears or face two months imprisonment.
The father paid what he owed, Ms. Stevens said, but then intermittent payments resumed, forcing her to return home to the UK.
With more than $1,500 allegedly owed to her as of last September, she said she had little hope to receive support through the usual channels. Instead, she resorted to filing a grievance with the Complaints Commission, as well as writing to Premier Dr. Orlando Smith and Deputy Premier Dr. Kedrick Pickering, the latter of whom she said delivered her son.
Complaints Commissioner Elton Georges confirmed that he received a complaint against the Magistrates’ Court for failing to enforce child support payments, adding that he’s received between eight and 12 complaints of a similar nature since his office opened in 2009.
Mr. Georges said he forwarded the complaint to Ms. Richards and was assured that it would be dealt with appropriately.
It was. Ms. Stevens said that as of February, all the payments owed to her were up to date.
“I did have success with the Magistrates’ department,” she stated. “The lady who I have been in contact with has been monitoring the payments, and so far they are finally up to date.”
Her husband, a VI boat captain, admitted to being behind on payments and said he’s caught up on his arrears now. He added that while he doesn’t think he should have to pay child support because his son is in the UK and he can’t be involved in his life, he will nevertheless continue to comply with the maintenance order.
Professional treatment
Ms. Richards said that Magistrates’ Court clerks are sufficiently trained to handle complaints of delinquencies, but that anyone who calls and does not receive professional treatment should ask to speak to a senior officer, such as Senior Administrative Officer Kisha Donovan or Court Manager Eunice Crawford.
If that doesn’t solve the problem, she said, the person should write to a magistrate.
Ms. Crawford recently told the House of Assembly that by the end of the year, the Magistrates’ Court hopes to educate the public on various aspects of the maintenance process, including applications, defaults, and warrants, according to the 2014 Standing Finance Committee report.
Officials hope that education will help parents navigate legal landmines that could cost them financial support for their children, as reportedly happened to the woman who accidentally vacated her order during High Court proceedings.
According to Ms. Richards, the woman told the Magistrates’ Court that her ex-husband wasn’t honouring his maintenance order.
When clerks checked on the woman’s file, she said, it turned out she had divorced through the High Court.
“As a result,” she said, “our maintenance order was automatically vacated.”
The Magistrates’ Court will team up with Government Information Services for the education initiative, Ms. Richards added.
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