Cases of child custody and maintenance are becoming quite popular in children courts across the globe. Normally, it is the mother of the child who is supposed to take care of the young one until they reach a certain age when they can make sound decisions.
As per the Kenyan law, the mother is expected to get the child's full custody until the child is aged 18 years. However, according to Kenya Law Resource Centre, a legal journal, custody can be given to any of the child's parents, guardian, or any person who applies for it with the consent of the initial custodian.
In many cases, when a couple separates and end up in court, it is usually the mother seeking legal backing for the father to cater for the child’s basic needs. According to the society, the father is usually the sole provider of basic needs in a family unit regardless of his potential or lack of it. But there are circumstances when the father is genuinely unable to meet these basic needs.
Courts usually take to consideration child’s basic needs such as food, education, shelter, health and clothing. If either of the parent is able to cater for that, then the more likely custody will be bestowed upon her/him.
According to Section 4 (3) of Children’s Act of 2001, the best interests of the child are also brought into consideration.
Any act shall be considered to be in the interest of the child if it is calculated to firstly safeguard and promote the rights and welfare of the child, and is aimed at securing these interests.
This is when things can get murky and difficult to navigate.
Once the court establishes that the best interests of the child are not with the mother, then custody might be bestowed to the father.
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In rare cases, women have been sued for child support.
Should a woman pay child support if she loses the case and custody is bestowed to the father? What does the law say?
Article 53 of the Constitution provides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not.
Therefore, child support is a joint responsibility. If the court orders a woman to pay part of the money, it must have been persuaded that she has an income that can cater for it.
In June this year, the court through Justice Florence Muchemi ruled that a child ought to be maintained by both parents.
The judge ruled that responsibility should be apportioned to each party according to their ability and the needs of the child.
This could now pave way for Kenyan men to move to court to sue women for child’s maintenance.
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