When the other parent won’t come to maintenance court

If he has moved or can’t be found

• Maintenance investigators must locate people who are to be subpoenaed.
• Cellphone networks. If all reasonable efforts to find him have failed, the court can direct cellphone and other electronic communications providers to give it his contact details. The State can pay the cost if you can’t.
• People who know him. A magistrate can call in anyone likely to know where he lives or works, such as relatives or an employer, and have them questioned.

Help the investigator with everything you know:

• His full name and ID number
• His last home and work addresses, and his employer’s name
• His phone numbers and email address
• Where his family lives, and places he often goes
• His car and registration number, if you know it

Keep a dated note of your own attempts to reach him. It helps show that reasonable efforts to find him have been made.

If he is served and doesn’t come

• It’s an offence. A person who is subpoenaed and fails to come without good reason can be fined or imprisoned for up to three months.
• A warrant of arrest. The court can issue a warrant to have him arrested and brought before it.
• A default order. If he knew about the subpoena and didn’t come, the maintenance officer can ask the court to go ahead without him. You give evidence, and the court can make a maintenance order by default.

He is then given a copy of the order. He has 20 days from learning of it to apply to set it aside or change it, and must give you at least 14 days’ notice. Until then, the order stands.

While the case is postponed

The court must finish maintenance enquiries as quickly as possible and keep postponements few and short. If a postponement is needed and there is no order yet, the court can make an interim maintenance order. It does this if there are enough grounds to show he is liable, and waiting would cause undue hardship. Ask the maintenance officer about it if you are struggling.

If there is an order and he doesn’t pay

That is a separate crime. Not paying under a maintenance order carries a fine or up to 3 years in prison, and a warrant of arrest can be issued. See how to prove maintenance arrears and get them paid and garnishee orders.

Questions parents ask

Who serves the subpoena?

A police officer, the sheriff or a maintenance investigator.

Can he be served by WhatsApp or SMS?

The law doesn’t provide for that. A subpoena is served on him in person, at his home or work, or fixed to the door or postbox.

I only know his old address. What now?

Give the investigator everything you know. If reasonable efforts fail, the court can direct cellphone networks to give his contact details.

What happens if he doesn’t come to court?

If he was subpoenaed, it is an offence and the court can issue a warrant for his arrest. The court can also make a maintenance order without him.

Can he cancel a default order?

He can apply to set it aside or change it within 20 days of learning of it, with at least 14 days’ notice to you. Until then, it stands.

Can I get money while the case keeps being postponed?

Ask for an interim maintenance order. The court can make one if he is likely liable and waiting would cause undue hardship.