Breach Child Access and Maintenance

Breach of Child Access
Following separation, children are usually set to ordinarily reside with one parent but be able to spend access time with the other. Article 338(ll) of the Criminal Code provides that it is an offence for a person to refuse access to a child who in his or her custody when bound by a contract or court order unless there is a just cause for not allowing access. The criminal courts interpret 'just cause' restrictively and such a cause must be a serious one.

Breach of Maintenance
Following separation, a party may be bound to make periodic financial contributions to the other, which obligation may take the form of child support or alimony payments. This obligation may arise from a court decision or may be laid down in the contract of separation.

Failing to pay maintenance contributions when required amounts to an offence as is provided in the Criminal Code (Article 388(z)). This Article holds that the contravention takes place if such person does not pay the maintenance within fifteen days from the day such maintenance is due.

It is not a defence for the accused to argue that the maintenance due cannot be paid due to a change in financial circumstances (e.g. a person becomes unemployed or the salary decreases drastically). In such case, the payer would have to apply to the Family Court so that it reviews the amount of maintenance due. The contravention provided in Article 388(z) would still subsist even though the financial circumstances change and there is no court order stating that maintenance is to be reduced or stopped due to such change in circumstance.

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