Dear Mrs Macaulay,
The situation with my child's father is very sad. We broke up a few months ago and I moved out. He takes no calls or messages and not even checks to find out about the child. I went to the Family Court, but based on how and where he works, it makes it hard to catch him so they are having a hard time trying to serve the summons. What else can I do, as he needs to do his part for his child as well.
Overall, he is just being spiteful because he is more than capable of playing his part.
It is clear from your letter that your application for maintenance has been filed, prepared and issued by the Family Court, and that all efforts to serve the father have failed to date. You say this is because of how he works, which I believe may refer to his hours of work and also where he works, which I believe may be that the process server cannot just enter and go and find him. It could also mean that when he is called to come and collect the documents, which must be handed to him, he suspects what they are and he just ignores it.
Before I go further and suggest what you can do about serving him, I must ask whether you also applied for custody, care and control of your child, or just applied for maintenance. I ask this because if, as you say, he is being spiteful, he may just apply for these himself in order to force you to go to court and fight to be able to make decisions about you child's development until the child reaches 18; or after attaining his or her undergraduate degree or training in a skilled occupation; or reaches age 23.
An order granting you custody would enable you to make the decisions for your child's upbringing. The latter, care and control, would enable you to have your child live with you, for you to nurture him or her every day, while the father has reasonable access as determined and ordered by the court.
I strongly suggest that if you have not made your application for custody, care and control, that you do so now, and what I am now going to suggest as far as serving him goes, can also cover the service of this application for maintenance.
I only suggest this application as well because I assume that the father's name and particulars are on your child's birth records and appear on the birth certificate. If not, then I am sure that with the application for maintenance, the clerk of the Family Court also prepared and issued an application for a declaration of paternity and this will lead to him being included in the birth records and certificate of your child.
This being so, you will at some time in your child's life need to obtain the father's consent for your child to be able to do whatever requires this consent, and he may well withhold his consent. If you have sole custody, care and control ordered by the court (and make sure that you safely keep a sealed copy of it always, so that you can produce it if and when necessary), you and your child will never find yourself in the position of needing the father's consent and being refused.
Now let me deal with what you should do now, since it has been impossible to serve the father, who you say is being spiteful. You must go back to the court and make an application for an order to dispense with personal service and for service to be effected by way of substituted service through an advertisement in a daily newspaper (which you know he reads or through which the advertisement is likely to be brought to his notice); and for it to be delivered to a family member of his who would generally be in touch with him; and also to send the applications to him by post. The court could make orders for all these to be done so that there are more chances of the applications being brought to his notice.
The order will instruct which newspaper and on which, and for how many days. You must keep a copy of the page of each publication and take them to the court to prove that they were done as ordered.
For the delivery to a family member, that should be done by a process server as you must have an affidavit of service filed in court to prove that the order was met. For the postage, if registered or otherwise, you must produce the post office receipt and acknowledgment of delivery.
The court may not order all three means of substituted service, but you should have all in your application to make assurance doubly sure. Substituted service orders are made all the time, they are not unusual.
Once the orders are fulfilled, the matter will proceed on the day which was set for you both to appear in court, even if he does not appear.
So go ahead to the court and make the applications I have suggested and have your child's future made more secure, in every way, not only for maintenance but also regarding custody, care and control. All the best to you both.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.