Defining child maintenance

Anthony Thiong’o

Question

I am a single mother of a two-year-old girl. Her father supported us for about three months after she was born. My mother then asked him to arrange for an official visit with his parents so that my family could find out his intentions and discuss child support as well. But the man disappeared and has never returned.

Several issues, however, nag me. First, my daughter has a medical cover under the father’s name. Does this entitle him to visit or see his daughter? Second, what exactly is child support? Apart from the medical cover, the father provides no other assistance towards raising his daughter. I wonder if the medical cover qualifies as child support. Finally, the man has fathered two other children after he got me pregnant. How can I have his name expunged from my daughter’s birth certificate? I am sure that he will not agree to sign an affidavit.

Answer

You have mixed up several legal issues. On the one hand, you question if providing medical cover without any other support can legally be termed as child support. In the same breath, you want to expunge all records of the child’s father from her life. It appears that you are still emotionally mixed up from the father’s abandonment. You are not sure if you want the father to properly live up to his parental responsibility and provide child support or whether you want him completely out of your lives.

I shall deal with one legal issue at a time. The Children’s Act of 2001 stipulates that parents have the duty or responsibility of maintaining their children. The Americans call it child support. The Act sets out the parameters of child maintenance and which can be summarised as the duty to bring up a child. It prescribes that a parent must provide his or her child with an adequate diet, shelter, clothing, medical care including immunisation, education and guidance. It is also a parent’s duty to protect the child from neglect, discrimination and abuse.

By providing medical cover, the father of your child is fulfilling one of his parental duties — that of providing medical care. But he is failing miserably in the provision of other necessities such as food, shelter, clothing and education.

The children’s act

He has both acknowledged and maintained the child albeit minimally. He, therefore, acquired parental responsibility under the Children’s Act. You may file a suit at the Children’s Court seeking orders for the father to provide further child support in respect of food, education, clothing and shelter.

It is, however, important to note that you, as the mother, also has a role to play in maintaining the child and the father is unlikely to be ordered to take up full maintenance of the child. In a case such as yours, where the father and mother do not live together, the court usually orders the father to pay a specific monthly sum to the mother in respect of maintenance or child support.

The father of your daughter has the right to visit her. A parent has certain rights over their child. These include the right to give parental guidance in religious, moral, social, cultural and other values. A parent also has the right to arrange or restrict the emigration of the child from Kenya. Assuming the father of your daughter demands his parental rights, you would have to agree on visitation rights. In the event that the two of you are unable to agree, you may refer the matter to the Children’s Court. The court usually sets out the time and dates when visitation can be done. Any breach of the conditions of visitation could result in the father being denied visitation rights.

Affidavit not enough

Your last question relates to the removal of the father’s name from your daughter’s birth certificate. I do not know of any way in which you can have the father’s name legally expunged from the birth certificate. These are permanent records that are altered only in rare circumstances. An affidavit from the father is not enough to alter the birth certificate either. The law does not allow one to alter a birth certificate merely because the mother and father have fallen out.

If you really want to change your daughter’s name so that it excludes that of the father, your only option would be to have a deed poll registered which gives provision for this. A parent has the right to name their child. The consent of the father to the change of name would ordinarily be necessary. If, however, the father has neglected the child for a period of more than six months, then the mother may be allowed to proceed with the name change without the father’s consent. Your father’s child is still providing her with medical care through the insurance cover. It is, therefore, not possible to say that he has abandoned the child. He is, however, neglecting the child. You need to decide whether you want the father to fully take up his parental responsibilities or whether you want him completely out of your lives.