How do I apply for child maintenance in Trinidad and Tobago?

Who can apply, and against whom

A mother or father can apply for an order against either parent, and so can a guardian, or a person the court has given custody, if no order has already been made on a parent's application (Family Law (Guardianship of Minors, Domicile and Maintenance) Act (Chapter 46:08), s 13(5)–(8)). Someone else caring for the child, such as a grandparent, can apply for legal custody and, with it, maintenance, if the court finds a sufficient interest (ss 2, 13(1)–(2)).

Where custody is given to one parent while the parents still live together, the order cannot be enforced while they do, and it lapses if they go on living together for 6 months after it is made (s 13(3)).

A man who is not presumed to be the father (for example, as the mother's husband or the registered father) must be named in a paternity order before or when the maintenance order is made, unless he admits paternity (ss 2(2), 13(5)). If the mother applies for a paternity order before the birth or within 2 months after it, the court may order payments to run from the birth (s 22(7)). The Family Court can order DNA testing (Family and Children Division Act 2016, s 21(d)).

Which court

The Family Court has jurisdiction in all maintenance matters (Family and Children Division Act 2016, ss 4(2), 9(1)), but magistrates' courts outside the St George West magisterial district keep their family jurisdiction until the Chief Justice directs otherwise (s 5(5)). Family matters from several districts have since moved to the Family Court, which sits in Port of Spain, Princes Town and Tobago, including those from Chaguanas and the Princes Town, Mayaro and Rio Claro areas (since 1 July 2021) and from all of Tobago. In other districts, for now, a maintenance application is normally made in the magistrates' court. A magistrates' court application goes to the district where you, the other parent or the child lives (Chapter 46:08, s 44(1)), and carries no court fee (Summary Courts (Fees) Rules 2020, Schedule, item 5). A magistrates' court cannot hear it if proceedings about the child are pending in the High Court (including the Family Court), if a High Court order on the child's custody, guardianship or access is in force, or if the child is a ward of court (s 44(2); Family and Children Division Act 2016, s 3(2)). Ask the court office which court serves your district.

What the court considers, and how long payments last

The court looks at all the circumstances, including (s 19):

• each parent's income, earning capacity and other resources, now and in the foreseeable future;
• each parent's needs, obligations and responsibilities;
• the child's needs and resources;
• any physical or mental disability of the child;
• the child's education or training, and what the parents expected for it; and
• the family's standard of living while they lived together.

A lump sum can also cover expenses reasonably incurred for the child before the order (s 20(1)).

An order stops having effect when the child turns 18, except to recover arrears already due, and payments stop at 16 unless the order directs that they continue to 18 (s 17(1)). Check that your order says so. The court can extend payments up to age 21 if the young person is in education or training, or if special circumstances justify it (s 16(1)). A parent or the young person can also apply after 18, for payments up to age 21 (s 16(3)).

Changes, arrears and enforcement

Either side can apply to vary the order when circumstances change, but a new amount can start no earlier than the date of the application (s 21).

Ask for payments to go through the court's Collecting Officer (s 26(6)). These collection and enforcement rules apply to Family Court orders too (Family and Children Division Act 2016, s 15(2)). Once 1 month has passed since the order was made, if any sum is unpaid, the Collecting Officer can apply for the payer to be brought before the court (s 27(1)). The court can order the payer's goods to be seized and sold. If that fails, it can send the payer to prison for up to 3 months, but only for wilful refusal or culpable neglect (s 27(2)–(4)). The usual 6-month time limit does not apply to enforcing arrears (s 27(6)).

If the payer is employed, ask about an attachment of earnings order, which directs the employer to deduct the payments and pay them over (Attachment of Earnings (Maintenance) Act (Chapter 45:52)).

Maintenance for a spouse or partner

A husband or wife can also claim maintenance for himself or herself (Chapter 46:08, s 24). An unmarried partner has no general right to maintenance (Cohabitational Relationships Act (Chapter 45:55), s 14). The Act covers only a man and a woman who lived together as husband and wife (s 2). At least one of you must be domiciled here, and you must have lived together here for at least a third of the relationship (s 3(2)). The court can order maintenance only if you lived together for at least 5 years, have a child of the relationship, or made substantial contributions to property or to the family; in at least the last case you must also show that refusing would cause grave injustice (ss 7, 10). Even then it can do so only in limited cases, such as where caring for a child of the relationship or of your partner who is under 12 leaves you unable to support yourself (s 15). No order can be made if you have since married or entered a new cohabitational relationship, and an order ends if you marry (s 17). The claim must normally be made within 2 years of separating (s 8).