Unlike in the past when fathers would shoulder the burden of child support, today, both parents share the responsibility of childbearing, depending on their income.
This therefore means whoever earns more, will carry the heaviest burden.
However, this does not exclude the other partner from providing as the court will determine what they will contribute towards the child’s wellbeing.
This has seen many parents frustrated as they are denied what they hoped to get by the court.
Advocate Nick Ndeda explains what one needs to know before filing for child support in Kenya.
Resolve Outside Court
First, Ndeda advises that if the parties involved can resolve the matter outside court, then that is an option to consider as matters in court tend to be ugly.
“When it comes to family matters, it is advisable to do things outside court because when you go to court, you might say things that are damaging and you cannot take them back. If you can do that, you will have to sign a Parental Responsibility Agreement which will be taken to court. It will adopt that and it becomes a court order,” explained Ndeda.
If talks outside court fail and the matter has to go through court proceedings, both the mother and father of the kid(s) will have to provide receipts that show how much they earn on a monthly basis and how much the child spends.
When it comes to the child’s expenditure, the primary custodian has to note down shelter, food, clothes, education, medical, protection, leisure, and entertainment expenses of the child.
The court will then determine who will contribute what depending on what each parent earns.
The decision made should ensure that it does not affect the quality of life the child is currently enjoying.
If the circumstances of either of the parent changes for the good or bad, Ndeda advises that they should go to court and appeal the terms.
“If the court order happened when one party was not earning good money or they did not have a job and now they do, the other party can move to court to appeal that the other pays more. Also, if by the time the ruling was made a party had a job and now they do not, or their salary has been reduced, they can go to court and seek for a change,” he said.
In the case where one is born into a wealthy family, the advocate says that the court will not consider family wealth but the wealth of the parent.
Additionally, one cannot demand help from the parents of any party (the grandparents of the children's support is sought) unless they agree on their own.
Further, if a step-parent decides to support a child who is not his and later breaks up with the mother or father of this child, he or she will not be forced to take care of that child.
“The biological father is the one responsible for the child. The new partner is only liable if he has. accepted to support the baby. If they break up, then the responsibility ends there.”
If one of the parents decides to refute or ignore the court ruling on child support, Advocate Ndeda says that the court is allowed by law to take several actions including jailing the parent.
“If one refuses or ignores the court order, the court can jail them for 7 to 14 days or sell their property to get the money or take their salary which should not be more than 45 per cent to cater for the needs of the child. However, if one failed to pay because they were sick and they can prove it, the court will not punish them but they will expect them to continue supporting the child.”
According to Ndeda, child support is fully for the betterment of the child, therefore the court will always put the interest of the child first.
Therefore, the decision made depends on the understanding of the court.