Episode Transcript
[00:00:01] Speaker A: The best insight, instant feedback, accountability. The all new talk radio freedom 106.5. Good morning, Mr. Alfonso. How are you?
You're muted.
[00:00:17] Speaker B: My apologies. Good morning.
Good morning to you and your and your listeners.
[00:00:22] Speaker A: Good morning, Ms. Alfonso. This is Ms. Alfonso, a civil litigator. As we talked this morning on a man's right to his child, I often wonder how we fare with that in Trinidad and Tobago. And I thoroughly hope that you can shed some light on it. When it comes to a man's right, his legal right to his child, what does that mean?
[00:00:49] Speaker B: Well, thankfully, our existing legislative framework provides for joint custody of children within a marriage. So that, let's just break that down. Or within a common law relationship, so it doesn't need to be a marriage. So the lawyer does recognize as it exists the joint right of a father and a mother to parent their child or children. So that that's encouraging. I think where we get lost in the weeds sometimes that people go to court, whether in or out of a marriage, whether separation or divorce.
And it seems to be an imbalance between how a magistrate or a judge treats with, you know, the time that each parent by ordering, you know, the time that each parent will spend with the children or the child of the family. I think that's where the angst amongst many men is. They're not fairly treated in the way that a mother will be treated before the courts, but within the marriage, within a common law relationship, I say certainly by legislation that is protected, that joint parenting rule is protected within the existing legislation. And of course, because if you're living in the same household, under whatever basis one expects the mother and father would have equal or closely equal input into the raising of their children.
[00:02:17] Speaker A: You know, with that being said, you talk about moms, what one person can say to me is that the courts tend to lean more on the wives or the mothers, the females. Is that fact or fiction?
[00:02:32] Speaker B: Unfortunately, it's factual. I'd say from the time I was a young attorney to now, it's gotten dramatically better. But law is an evolving thing. Law didn't arrive as an eagle, and this is the law.
So the law has evolved not only in Trinidad, maybe a little bit more slowly in Trinidad, but legislatively, let's say, in Canada and United Kingdom, they've come a very long way over several years where that equality, not only has it found itself in case law, but also in legislation.
But let us be fair, even in those jurisdictions, I mean, you can't get away. The judges and magistrates happen to be human beings as well, it is built into us, at least in this generation, that a mother has the greater parenting rule and it is part of our society as well. Right. So let's not just say it's the law or what the judges do. And so our society has been marked by single mother homes. So therefore we have that. We go into a particular scenario feeling that the mother is the person to properly parent a child. And I would add, particularly a minor child, and particularly a female minor child. So there was this, you know, this kind of.
I would want to say, you know, it's a.
I don't, it was a reverse misogyny. I don't know.
No, but it's built into our social fabrics, whether it's grandmother, mother, as the case may be a bigger cousin, daughter, you know, they seem to have more facility in looking after parenting, particularly and looking after a female, young female child.
Nothing Rome wasn't built in a day, I think, I mean, I'll say in my own household, I think my husband was a much more adept changer of diapers or Pampers than I was.
So I think that role, I mean, there's a. I said if you look at our parents or our grandparents, the role of a father has evolved too. So it's not a matter that is ensconced in our courts. The role of a father has developed in our households and it's a generational thing. So that we've progressed in the courts, we've progressed in terms of how fathers see their role in parenting. The law is there to support them. Of course, they're outliers.
If there's an allegation of abuse, either of the mother or the children or both, obviously you're not looking for equality.
I mean, a court quite happy to order people go to co parenting counseling, go to psychological, you know, assistance and enough of those things in our family law system though. But taking away some issue of abuse, the law is designed to start off with in a marriage, in a relationship, that both parents have equal rights to make decisions on education, religion, you know, social activity, whatever it is. And I say certainly the courts and the case law evolving, we accept evolving, have come very much closer to that post marriage or post relationship. But as I said, you can't, you can't get away from your history. This is still the Caribbean history. I can't speak for United Kingdom or Canada or anything like it. Let's Caribbean history, mommy, grandmother, are the matriarchal figures that we rely on to rear our children.
[00:06:14] Speaker A: You know, it's funny that you Talk about your husband and changing diapers and stuff. Because as a father of two myself, I was very, very, very active in dealing with those types of scenarios. I have two sons, I don't have any daughters, but I was very, very active in dealing with that. And I had my fair share of the, you know, changing of the pampers and even giving the boys their baths and so forth and getting them ready. I felt a sense of balance, however, with neighbors around me. There was an instance, and I want to ask you about it, where the father was brought before a magistrate for child maintenance.
Seven years into the release, being arrested twice, spending a total of 90 days incarceration. One stint was a month and the second was two months.
Mom felt for some reason that is not her granddaughter and secretly took the child to place an arima, saved the money 5,000, got the DNA and lo and behold it wasn't and there was no redress.
What is the law when it comes to. Because I feel I'm of the consensus and of the view that once a woman brings a man before the courts for child maintenance, it should be made. Legislation should be put in place that immediately upon such let us validate and verify that you are the father first. So that should be automatic. I don't know what it is, but I think it should be. What are your thoughts?
[00:08:00] Speaker B: Well, be fear.
Our Lord does recognize somebody being a child of the family. That doesn't mean by blood. So that if, for example, a man came in to a relationship and a lady had another child or two other children and then she had a child for this person, it doesn't matter if they had a child and they were living in a household and this gentleman was, you know, maintaining the household, you know, bringing in the bread, bringing in part of his salary and bringing in the bread, the baker and whatever it is, he would not be the fact that those are not his children and relationship went on for some time and it's, you know, deemed to be a common law relationship, he would not be let off on the basis that those children are not his children and therefore he's not responsible to maintain them. I mean, another scenario would be if another man was maintaining those children while they were in the relationship, then you can't stick him with it. Right, but so let's go back to your. Let's match that up to your relationship. If I treated a child, however wrongly, as my own for a number of years and then it discovered at a later time, that is not my child, but you are maintaining that child as a child of the family.
No less, no more, no differently than as I said, if you walked into a relationship with a young lady and she already had children from another relationship.
So, I mean, at the end of the day, you treated that child because you believed it was yours. But look at the other scenario, the other children, you know, they're not yours, but you were maintaining them in any event.
[00:09:44] Speaker A: Yeah, but I was able to make an informed decision there. I don't mean to cut you, Ms. Alfonso. Mrs. But I was able to make an informed decision. I choose to date you knowing that you had two children. And in the course of our five or eight year relationship, we had, we had another child. That's fine. That is me making an informed decision as opposed to we in a relationship. You stepped out. If even if you come back and said, listen, I cheated on you and this child may not be yours again, I choose to forgive you and say, you know what, I love you and we're going on with you on this man. Or they break up. Yeah, I know the possibility exists it may not again. Or she's telling me outright this is not your child. Because maybe when she got pregnant, we now got back together and she discovered she was pregnant and she's telling me outright, I can then make an informed decision to continue. And if I do so, then I can be held responsible. But if you cheated, if we are together and you stepped out and I was oblivious to that, I'm unaware and then I become aware of it and recognize it's not, why am I being held accountable for it and why is it being considered a child of the family? And in truth, and in fact, I was unaware of your infidelity.
[00:10:57] Speaker B: But again, we go back to the same principle. You felt wrongly, not, not based on scientific DNA knowledge at the time that that child and you maintain that child. I think one of the things, the starting point has to be at all times, all courts, whether magisterial or at the high court level or the court of appeal as the case may be, you have to understand the principle, the criteria that they use, the fulcrum that they use is what best interest of the child, not what is in the best interest of daddy, what is in the best interest of mommy? Because I think the courts are going to evaluate. No, I treat, you treated this child wrongly as a child of the, of the family. You maintain the child on that basis and the child has to be maintained.
Right. And I mean, of course, it's mostly. Well, I said, again, understand the principle. In with all commonwealth jurisdictions, I say, I Can't speak of other systems. Is the principal person. The courts are there to protect the child's interests. I said not mommy and not daddy, not grandparents, not Nene, not anything else. The child is the principal thing. So child must be maintained. The child has to go to school. The child has expenses. The child's expenses have. You were meeting it on. In. In. In. In. Was it within local parentis? Meaning as a parent, in the capacity of a parent, you were meeting, that is your gentleman in that scenario. He was meeting those expenses as a father, he was acting as a parent, he was acting as a God.
[00:12:30] Speaker A: But Ms. Alfonso, I mean, listen, this is because I made an informed decision. So what you are telling me, if I'm in the relationship and you stepped out on me, or the person steps out, they got pregnant, they tell me they're pregnant, whatever. I. I believe this my child, so to speak, and we break up, I discover that child is not mine. Five, seven years later, I'm already paying maintenance for this child. And I realized this is not my child. Can I take documents back to the court and show this is not my child? Why am I paying this? Why are you not pursuing the. And we are not together anymore. Why not pursuing the legal father of this child? Why do I have to.
[00:13:15] Speaker B: So let me ask you this. So your person in your scenario would have, as I say, make a jail and so on. So he was in default of maintenance and so on?
[00:13:26] Speaker A: Yes, he was. And he sat down there, right?
[00:13:31] Speaker B: I never. I really don't counsel that because I don't know how the parent now gets to pay the money while sitting in jail. That puts you in, you know, put.
[00:13:39] Speaker A: It down and the money's still running it. Because according to the magistrate, when I. Because when the. When he was actually doing a job for me on the work site, and while working for me, the police passed and saw him and recognized that a warrant and they came back and they took him. And that was when I was aware of it. And when I went, the first one was two months and the last one he stayed for a month. When I got to the gist of it is the fact that it was maintenance and he was owing and stuff like that. But while he was owing, the court let him know. The police said that, you know, it didn't stop while you sit down in there, the child still had to live. So the money's still running. You had to pay this and then you come out and then you still had to continue to pay. Mom didn't like it. So his mother which is the child's perceived grandmother took the child and they found out, so he stopped paying it. Are you saying that the law dictates even if you find out it's not yours and you have medical documents to prove it, you cannot go back to the courts to submit this to get out of that bind that you're locked.
[00:14:40] Speaker B: Into unfairly go back to court and seek a variation? Yes.
[00:14:45] Speaker A: I'm not saying no, but would the court acknowledge it?
Well, from your experience.
[00:14:53] Speaker B: They may ask the question, why is the. The well designed? Here's another social reality. When the lady finds out through the DNA testing, well, person A working for you is not the father of the child. Does. Does mommy know who the father of the child is that she can now go back seven, eight years? Well, aside from A person I was sleeping with. B, personal C, person you know, listen to me very.
[00:15:24] Speaker A: I am so happy that you came on this morning. The thing about it is this is madness. And I had to break it down in layman terms. I want imman in the taxi people cringing right now because this is so unfair towards men.
Now you talk about the social responsibility of the adult of the parent. Remember, you are saying two things here to me this morning and to our listeners. One, you were talking about on the notion or the actuality of me and you having. You and I having a relationship where I am aware again, I am making an informed decision. So if we break up and you take me to court for maintenance with all children, I can understand where children of the family are. Child of the family. I had accepted responsibility and said, gil, I love you and we're going to rear these children. However, it didn't work out and he bring me before the court. That's my risk to take. I understand that. But when it was discovered, I'm talking about. I did not know and I'm now getting a discovery on this matter. I have to go back to court. You are telling me the magistrate can very well say, well, listen, at the end of the day, you was doing it. You had to continue. This is what, this is what I'm trying to get from you.
[00:16:42] Speaker B: Yeah. And there is a possibility. So one, I speak for every magistrate and every judge in Trinidad.
[00:16:48] Speaker A: Granted. Granted.
[00:16:50] Speaker B: Because we have principles that guide both magistrates and judges. They start off with the premise. I said, the child interest is paramount. Not Mommy, not Daddy, not father who get away for the last six or seven years. Right.
[00:17:04] Speaker A: So.
[00:17:05] Speaker B: Right. So that child has to maintain and say your. Your person. That we say our.
Our person. Here we are Describing Right. Can make an application to the court whether he would be successful. He might get a reduction on the basis that, you know, madam, we reducing this and you need to look out for the. Look for the father and let you know similar application.
But I wouldn't tell anybody, but you're going to walk away from court with your DNA flying in your hand. No. Let me give you a different scenario. If in the beginning of. I don't see the beginning at the early outset of the child's birth and so on this scenario had evolved, that would have been his defense.
That would have been your friend's defense.
This is not my child. Here is the DNA. I don't know who child that is. They know my child. Right, right. No, it would have. The law would have worked, assisted that person more because no, that child is not a child of the family because it's an early stage, whether she has other children or not. Any assumed, you know, as you say, risk. And for that person, another issue. But this child at an early stage, I know this is not my child. So that theory, that legal theory of becoming a child of the family will not, I don't want to say not kick in then, right? Not kick in. But it is. I say, once you. You start to say, well, look, this man has been responsible in the relationship, outside the relationship after relationship done to look after that that's a child of the family, it's going to be very hard to dislodge liability, financial liability, I don't mean like financial liability for that child bearing in mind. I said, the court comes in. Every judicial officer of whatever rank is walking into the court with the prep. I said, what is paramount and the front of their mind. The best interest of the child is what I have to be laser focus focused on. I say, not mommy, not Daddy, not. I thought it was daddy escaping Daddy. Wow.
[00:19:08] Speaker A: You know this. I hope, I hope all men out there listening to this, because I would imagine, and if I was ever placed in a situation like that, let me ask you this. I'm taken before the court because the relationship dissolves and she's saying, molina, I need to get money to mind the children. He had to come at that stage. Before I go forward, can I get a DNA and produce it? Can I request time? Because I would have been given a summons to appear before a magistrate to deal with the maintenance. When I get to the magistrate, could I say, your honor, I would like to get a DNA test to ensure at that juncture. Could I ask for that? Or is it that the court consider.
[00:19:55] Speaker B: Again that factors in what I just said. Right? Okay. How far into the relationship is this? If this is this child, no ritual is a month old or three months old or nine months old or a year old as the case may be, then I say the, the principal doesn't set in there for, you know, I don't want to. Dear, if your child has been. Was born and, and as alive and in a, in a, in the, in that consensual home for about six, seven years. Seven years. I really don't feel that the court is going to look very favorably on goodness.
But title to say, here's a DNA test. I was never the father. When this order, this. No, this is a. What is. What you would call this? Any maintenance order, whether any high court or the, or the. Or the lower court is capable of being varied, right? So the person who has the order against him, or for that matter the two parties, the person who has in their favor and the person who has the order against them. So man and woman, they can come and tell the court. Look, there are different factors that have evolved since the court's order was given. And I want that to be varied and that's a myriad of things. The child was in primary school when the order was made. The child is now in high school. I need more money. By the way, since we separated, the woman get a big worker, she making more money than me, right? So why am I, you know, sharing an unfair burden of the maintenance?
Since the order was made. When the order was made, I'm the custodial parent, the parent who has the child. I'm now unemployed. When the order was made, I was employed. So I didn't seek that amount of money because, you know, I was paying my. So all of those are factors, you.
[00:21:36] Speaker A: Know, said something that. Listen, you gotta come back, you know, we had to talk more in depth, you know, because this is ludicrous. You're saying to me because, all right, so mom and I separated and somebody says, here, let me just read this. They says, so he can theoretically be jailed for refusing to pay maintenance for a child that is not his. Another woman, another person, man in his 60s and has fallen in love with her. He knows that his baby, that he has baby twins with an. Okay, I will have to get back to that one. But I want to, I want to not forget my trend of thought with this. Gosh, you know, said something there, you know, my goodness, I should have never read that thing. But you're saying to me, right, that no redress can come to anyone. No. Oh, right. No, I don't remember departing. Money. Depart with the money. So you get a big work. You and I together. And at the time I was a supermarket worker. I was the, you know, the senior breadwinner or the one bringing in the bigger, bigger bacon, as it were. And we handed down a judgment where I have to pay this amount to the child. You come and get a job that is superseding what I am earning.
Would the court look favorable on that and say, based on your experience, and again, it's for every magistrate, but based on your experience, would the court look favorably and say, listen, you are now the higher earner in this situation. So if the man was paying, let's say, a thousand dollars a month, you are required to pay. We can reduce his payments a bit. And you fill in what happens in a case like that, a magistrate and.
[00:23:16] Speaker B: A judge are doing a balancing act. The expenses of the child. So that isn't going to be fixed. We could, we could. Anybody who has a child could definitely tell you no expense for a child is fixed. True.
So. So I don't think you have to have a child in order to come to that conclusion.
[00:23:32] Speaker A: But agreed.
[00:23:33] Speaker B: Right. So. But if it is so, the court is doing a balancing act. The child. This is a child's expenses. This your contribution to the child's expenses. So obviously in that, in that analysis, the earning power or the earning capacity or the particular status at the material time, remember, it's in a period of time.
Order can be varied. Right. I know many orders remain fixed, you know, till the child reach 18 or beyond. But it is not meant to be in law that it is fixed. Anybody is entitled to come back and ask for a variation. And those are the factors that you want to bring to the court. Well, here's my pay slip. I'm making less money. I know here she's a supervisor in the. Where she was a packer in the supermarket. She's now a supervisor, assistant manager and so on. So he has a greater thing and I catch him in because I have another family. Right.
And you know, I need to maintain these children. All of those are factors that certainly a judicial officer would weigh.
[00:24:33] Speaker A: Okay.
[00:24:34] Speaker B: I can't tell you this way or that way, but they will weigh most certainly that I have to do the best for the child. Remember, paramount as a child.
[00:24:41] Speaker A: Right.
[00:24:42] Speaker B: And look at the earning power of the respective parents of this child.
[00:24:48] Speaker A: Okay, good. Now let's talk a little bit about a situation where the child is in the custody.
Can I Can. Can a man go to court and get maintenance for his child from a.
[00:25:02] Speaker B: Woman if he's a custodial parent, if he's breaking that custodial parent, the child in whose custody, who is regularly in that person's custody. So, as I said, it is not always the case that the child is with the mother.
[00:25:20] Speaker A: Right.
[00:25:20] Speaker B: Sometimes child ends up with the father because the mother is in a different, you know, household. That father or that. Sorry, that, not that father, that gentleman doesn't want that child in his household, as the case may be. And that child. And that child's custody falls into, whether by court order or by de facto by reality. Right. Falls into the hands of the father. Of course, the father can say, well, look, I am sending a child to school. I buy in school book, I buying writing material and sending them to extra lessons and so.
[00:25:51] Speaker A: So she can be made to pay maintenance.
[00:25:55] Speaker B: Yes, yes.
[00:25:56] Speaker A: Do we have that Internet?
[00:25:58] Speaker B: Yes.
[00:25:59] Speaker A: Beautiful. I had to ask, to ask because I know you've been a practicing litigator for some years. You would have had cases as such.
[00:26:09] Speaker B: We most certainly have that. And I mean, I said people, I say law evolves and so do our lives. We have, we have many cases where I say the father was the, the powerhouse of the, you know, of the household and the ascendancy at a different stage. Different, different lives, different stages. Now I said they come back to court for variation. I mean, I will, I will, I will tell you, my time in the Maritimes Court has come to an end many years ago, but certainly these are the same principles we're using in the High Court. It's not like we have a set of rules for the Magistrates Court, we have a set of rules for the High Court. Same principles, same case law, same considerations are applying there. So, yes, of course, if the custodial parent is. I mean, there's a very. A case that's very close to my heart that I did for. Wow. Going into 10 years, terribly contentious custody matter till the child grew up in the family court, without a doubt.
[00:27:00] Speaker A: Oh, Lord.
[00:27:02] Speaker B: Right. And I said, I think the judge ended up with splitting access. I'm giving custody to the father. Let's start with that right child. I'm going to try, like Solomon, to divide up all of the time. Not holidays and long holidays and so on alone, the weeks of school and holidays and everything, and Father's Day, Mother's Day, Christmas Day, everything is going to be divided up kind of like Solomon. And when the child is with the father, he will pay her expenses. When the Child is with the mother. He will pay, she will pay.
So that's so. I mean that was the worst custody matter I'd ever been in and hope Jesus never to see another one. Right. And I hope not to see a child and say. Right. You know, I never say common entrance and date myself, but.
Right. I try. Starts off with an infant.
[00:27:59] Speaker A: Yeah.
[00:28:00] Speaker B: Going school and are still doing the damn matter.
[00:28:03] Speaker A: Oh my goodness.
[00:28:05] Speaker B: But the fact is the outcome was, I mean, I never thought we'd see the outcome. I thought we, you know, both us and the client must have given up three quarters of the time already. But custody was placed in the gentleman's hand. So that is not. And that's another thing that people have a fallacy is that custody will always go to the mother. Oh, no, no, no, that's not the case.
But we have a predisposition. We have a built in social netting network stitching whatever, whatever it is with moms.
And I say mom and girl children.
[00:28:39] Speaker A: Is a different, is a whole different ballgame. All right, let's take a call very quickly. Good morning.
[00:28:45] Speaker C: You know, it is sad. I was listening to you before I came out the COVID 20 minutes. Just got back in Devi. You know, it is sad that we do not live in what I would call an evolved society because I think it is foolish to put an individual in jail for not paying child maintenance in the civil law jurisdiction. If you owe some money, they seize what you have and they sell it. And if it is that you don't have anything putting you in jail, what sense does it make? I really and truly believe that we ought to find a different methodology to deal with what we call delinquent dads. Because at the end of the day, incarcerated individual to me is quite archaic and we need to find a way to treat with that. And that's because, you know, we don't have an evolved society. There's no proactive if by our members of parliament in treating with legislation and law, talking to people, listening to how things are done. And lastly, David, with respect, the whole question I heard her speaking about, you know, a family unit is a family unit and therefore it has to be treated as such. If you were the head of the family unit and now you're a delinquent, whether the children are yours or not, so be it. But even that law also has to be evolved because the discovery of a child that is not your own will send great emotions through that individual and you do not know what could happen. So those are things that we have to treat with and we have to find ways to deal with it that has a balanced scale. But again, like I said, we don't have an evolving society. Our members of Parliament are not proactive. And that is why we are where we are. Listen to your comments.
[00:30:14] Speaker A: You know, I have to agree with him. And I still, while I understand what you have said this morning, and I do disagree, the child's interest is paramount and first, however, we are human beings.
As a father, I would probably have another family moved on and I am still tied to something that does not belong to me. I think it to be very, very unfair. Even if it's in the best interest of the child at that point in time that someone else is made to carry that burden while the biological parent sails away free. Now, even if mom doesn't know who the biological parent is, that falls on Mom. That has nothing to do with dad. You have to know who you're with. You ought to know what you're doing. And I think for me, that's why they say lawyers, doctors, you don't ever graduate. Yes, you got a medical school and out of law school, but because if you practice medicine and you practice law, it's never a done deal. No matter how it's never done. Law is repealed, it's moved, added, it's never a done deal. So I want to thank you this morning and I most certainly will invite you again for a part two because the text messages were going crazy this morning about the things that you said that could be perceived as controversial. However, it was factual and it is law and it does make sense. If you are a child of the family, you should be treated as such. I do agree with that, but however, if you take me to court, I think somewhere in the legislation it should mandate. Let's validate and verify. Because you're going to affect another man's family, another. It affects everybody. But we need to know informed decision. I stand by that. But we'll Talk again soon. Ms. Alfonso, thank you for your time.
[00:31:56] Speaker B: Thank you for having me on.
[00:31:58] Speaker A: Indeed. So have a great one. The best insight, instant feedback, accountability. The only new Talk Radio Freedom 106.5.
