The age old practice, the mutual natural instinct that predisposes parents to love and protect their families, is waning off in many families, forcing the law to take the place of love to ensure their smooth running, writes Harold Ayodo
The idea of a perfect family fascinates all, even if at some level we know there’s no such a thing. But by imagining there are those who seem to have everything right, we set ourselves for perpetual disappointment, especially if we strive to mimic them.
Even by appreciating this fact, the opposite is becoming the norm rather than the exception, where either parent chooses to abdicate their parental duties, often for irrational and selfish reasons. And seeing the increased level of irresponsibility, the law is forced to come into the place of love to infuse normalcy for the sake of the children born in those families.
“Families are increasingly run by law instead of the traditional love that bound them together in marriage,” notes family lawyer Kevin Onyango.
Today, the children’s court is a beehive of activity as mothers fight to ensure the athers of their children do not walk out of broken relationships scott-free. In many occasions, courts decide the amount of money the parents of the child would pay based on their monthly income and standard of living.
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Others engage lawyers to draft parental responsibility agreements, which are basically memorandums of understanding (MoU) on their roles to the child.
The MoUs are then recorded in court to make it an offence should a parent fail to meet his or her part of the bargain.
Take the case of Alice Nyambura, who says she separated with her husband, but not without a ‘fight’.
“I was retrenched three years ago making my husband the sole bread winner, after which he started having a string of extra-marital affairs,” Nyambura says.
Nyambura confesses that they resolved to separate after he promised to support their three children, which he did for six months before he went quiet.
“I moved out with the children to a two-bedroomed house where he paid rent and fees for the children in a private school before going mute,” Nyambura says.
The former flight attendant says she engaged a family lawyer who wrote a demand letter to her estranged husband before the matter proceeded to the children’s court.
“My lawyer wrote him a letter detailing the needs of the children and the amount of money he should send me monthly, but he never responded,” Nyambura says.
They proceeded to court where it was ordered that part of his salary be deposited to her account monthly for rent, food, fees, medication and clothing for the children.
Mildred Kimeu was in a come-we-stay relationship for two years before she delivered a baby boy and the man walked out on her.
“He walked out on me early last year and is planning to get married to another woman,” Mildred says.
Although Mildred who is employed, she moved to court to force the man to contribute to the up bringing of the child.?
“I have no problem with the fact that he has moved on with his life, but we must share the costs of bringing up the innocent baby,” Kimeu says.
The court however is yet to rule on the amount they will each contribute as working parents.
David Nyavicha observes that some men may be walking away from their families out of irresponsibility.
“Some of us may not be supporting the children we father because of poor finances, but I agree that we should be feeding the mouths we brought on earth,” Nyavicha says.
Onyango says cases related to child maintenance are on the increase.
“We have many couples and spouses reaching legal agreements on how to cater for their roles towards their children,” Onyango says.
According to Onyango, majority of the affected spouses opt to stay in separate houses and even agree on visiting rights.
“Courts issue orders on the time a father may pick up the children — say on Friday evenings and return them on Sunday by 4pm,” Onyango says.
According to Onyango, courts prefer that children of tender years stay with their mothers when a marriage hits the rocks.
“The law presumes that mothers provide natural nourishment roles to the children of a tender age,” he says.
Fathers can only be granted custody of the children in cases where a mother is irresponsible or a drug addict, which must be proved in court.
It is not only spouses whose marriages have hit the rocks that rely on the law to run their families, but even single mothers.
“Single mothers are waking up to the realities provided for in the Constitution that insist that disputes must be solved in the best interest of the child,” Onyango says.
The new Constitution provides several rights for children born in or out of wedlock. For instance, Article 53(2) says a child’s best interests are of paramount importance in every matter concerning the minor.
It also stipulates that every child has the right to basic nutrition, shelter, health care, parental care and protection.
Constitutionally, parental responsibility includes provision for the child — whether the mother and father are married or not
Onyango says there is also an increase in parents moving to court to seek DNA orders to prove paternity of children.
However, Onyango explains that the tide has changed and child support is no longer the sole responsibility of the father.
“If both parents are working and earn a salary, then courts often order that they split equally the total cost of the maintenance,” Onyango says.
Interestingly, it is impossible for working parents to lie about their income as courts often order them to swear an affidavit of means and deposit their payslips with the court.
For starters, an affidavit of means is a legal document that states the name of the employer and salary earned monthly.
Federation of Women Lawyers (Fida) senior legal counsel Jacqueline Ingutiah adds a fresh twist, saying even spouses living under one roof rely on the law to run families.
“We have taken up cases where a father abdicates his responsibilities before his wife moves to court to force him to sign an agreement to perform his roles,” Ingutiah says.
According to Ingutiah, parental responsibility cases are make up the majority of family disputes the organisation mediates in.
“We refer some parents to the children’s department where the irresponsible parent is forced to take up responsibilities before moving to court,” Ingutiah says.
She says they often summon both spouses for mediation and request them to enter parental responsibility agreements before going to court.
Ingutiah explains that in some cases, men marry other wives and neglect their children before the previous wife turns the legal heat on them.
Sociologists warn that the upsurge of young mothers seeking court orders to force biological fathers of their children will go higher.