A father's right to claim child support

Word of the court's order for Halle Berry to pay child support to her ex-boyfriend Gabriel Aubry, the father of her daughter, Nahla, may have come as a surprise, because it is still unusual for women to be ordered to make any maintenance payments, whether in respect of their children or their spouses. One wonders whether a Jamaican court would be likely to make a similar order.

Let us first consider the facts, as they have been reported, before examining the Jamaican legal position:

1 Berry and Aubry were together for almost five years.

2 Nahla was born in 2008.

3 The couple separated in 2010 and agreed to shared custody of Nahla.

4 Berry is a famous movie star and a high income earner and Aubry is a model, whose income is reported to be sporadic.

The two relevant Jamaican statutes to consider are the Children (Guardianship and Custody) Act and the Maintenance Act. Under the Children (Guardianship and Custody) Act, both parents are equally entitled to custody of a child, so a mother's right is not superior to that of a father. Therefore, a joint custody order may also have been made in Jamaica, whether by consent of the parties or as determined by the court.

What is unusual about the Children (Guardianship and Custody) Act is that section 7 only provides for the father to pay maintenance to the mother when a custody order has been made. There is no provision for the mother to pay maintenance to the father.

Under the Maintenance Act, however, each parent has an obligation to maintain his or her child to the extent that the parent is capable of so doing. It stands to reason that both Berry and Aubry would be responsible for Nahla's maintenance; but the extent to which each parent is capable of providing for that child would be examined and the Jamaican court would have regard to, among other things, the child's aptitude for, and reasonable prospects of, obtaining an education and need for a stable environment.

Ultimately, the welfare of the child is the paramount consideration for the court in matters which relate to a child's custody and maintenance. Therefore, in an appropriate case where there is evidence that the child's needs may not be adequately met by one parent while the child is in his or her care, the court may be inclined to make an order for maintenance to be paid to that parent for the child's benefit.

children's interest

This situation brings to mind the UK Supreme Court decision in the case of Radmacher v Granatino in which the court was persuaded to make an order in the best interest of the children, although the circumstances would not have otherwise warranted that order. In Radmacher v Granatino, the court upheld a prenuptial agreement which prevented a husband from sharing in his wife's fortune, but made an order for a lump sum payment to be made to him and for a house to be made available for him to live in until their children reach age 22. It is clear from the judgment that the orders in relation to the payment and the house were only made for the children's benefit.

It is possible that Aubry could have obtained a similar order in Jamaica. However, in cases of this nature, there are no true precedents, as the court will examine the peculiar facts of each case in determining what order should be made.

Sherry-Ann McGregor, partner and mediator, Nunes, Scholefield, DeLeon & Company, attorneys-at-law and notaries public. Send feedback and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com