My name is Lisa. I am a 40-year-old mother of three boys, all of whom I had with my estranged lover. One of the boys, the second born, is mentally challenged and needs special care. The first born is in Form One while the last born is in class five. My babies’ father is married. He works as an auditor and I understand that his net salary is over Sh. 100,000 per month.
He however doesn’t provide anything for our kids. Not even for the second born who is mentally challenged. I am currently broke and unable to sustain my children after my salon business collapsed. When I reached out to him, he said I tricked him into having kids and he can never pay child support for kids he never wanted.
What legal options do I have to get him to pay child support? What amount should I ask for in court? What are the chances that the court can refuse to attach his salary for child support, given that he is in the private sector and not a civil servant?
Caroline Maina, an Advocate of the High Court and the managing partner in charge of Corporate and Commercial practice at CMK Associates
Dear Lisa,
I salute you for being a formidable single mother to your three boys. It must be a tough time raising them after the loss of your salon business, especially the second born who is differently abled and needs special care. In case you have not heard it recently, you are doing a great job.
To answer you, I will start by highlighting to you that maintenance of children is a tenet upheld in the Constitution of Kenya, 2010 and the Children Act. Article 53 of the Constitution provides that Every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.
There are different ways to approach the discussion about maintenance and you have indicated that dialogue has failed and there is no formal agreement on how to share the parental responsibilities with the father of the children.
You may try seeking audience of the Children’s Officer near you to mediate between the two parties and work up a parental responsibility agreement that can help set out roles and contributions by each parent. Failing this mediation, you can opt to go to court and have the court decide on the issue of maintenance of the children.
Before going to court, here is what you need to acknowledge; maintenance is an aspect of parental care and is the responsibility of both parents of a child. Another key aspect to consider before going to court is that in children’s maintenance proceedings, an order for maintenance is intended to secure the best interests of children.
This is the overarching consideration upheld in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child.
For you to know how much to ask for in court in terms of the Children’s maintenance, think about the basic needs of the children. These are, food, shelter, clothing, healthcare, schooling. Making a summary of the ascertained children’s needs including the respective cost thereof will form the basis of your claim in court.
Noting that parental responsibility is supposed to be equally borne by the parents, you will need to pick out which of these needs you can comfortably meet for the children and which of the needs you need to have the court’s intervention to compel the father of the children to meet.
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The amount to be assigned as maintenance from the children’s father to your children will be at the discretion of the Courts, based upon the evidence and information given in your pleadings and the entire court proceedings before court. At all times, the Court will be guided by the Children’s Act when making an order for financial provision for the maintenance of a child, which are:
(a) the income or earning capacity, property and other financial resources which the parties have or are likely to have in the foreseeable future;
(b) the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future;
(c) the financial needs of the child and the child’s current circumstances;
The Court will thus be expected to analyze the earning of each parent to reach an informed decision. Orders of maintenance are required to be based on proved income and pegged on ascertained needs of the children which the parents then share accordingly.
Once an order for maintenance is made by Court, it ideally is enforceable even without an order for attachment of salary. Assuming that the father of the children does not comply with the maintenance orders and fails to remit funds as per the judgment, you will have the option to enforce the order by making an application for the attachment of his salary to the extent that is allowed.
This avenue is available with respect to persons employed in the private or the public sector. Non-compliance with lawful court orders is an offence punishable by jail term.
Please reach out with further enquiries on: [email protected]
