What you need to know:
- My babies' father is married. He works as an auditor and his net salary is over Sh100,000 per month. He however doesn't provide anything for our children
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 firstborn is in Form One while the lastborn is in class five. My babies' father is married. He works as an auditor and his net salary is over Sh100,000 per month. He however doesn't provide anything for our children. 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 children 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?
Harriet Onyiego, an Advocate of the High Court of Kenya, and a Member of Young Lawyers Committee, East Africa Law Society.
Among the options to consider is visiting the child welfare institutions such as the Department of Children Services or the National Legal Aid Services (NLAS). Here, the father of your children may be summoned for purposes of mediation, during which a parental responsibility agreement can be agreed upon. The parental responsibility agreement will set out binding parental obligations for the basic needs of the children. Should you fail to record an agreement before the welfare institution or if the agreement reached is frustrated by the father's non-compliance, you may proceed to court and file a child maintenance case.
The court will determine the dispute by hearing out both you and the father of your children, guided by the provisions of the Constitution of Kenya, 2010 and the Children Act. Section 94(1) of the Children Act. If you are of good health with the ability to contribute towards the welfare of the children, it will not be wise for you to say that you have no source of income. You cannot plead that the responsibility of maintaining the children should only be borne by the father of the children. As regards, the children in the marriage, relationship, or partnership; the court will consider their current circumstances. It will consider their financial needs as well as any disabilities, medical conditions, and how the children are expected to be educated.
What amount should you ask for in court?
The father's salary ought to be supported by evidence such as pay-slips or invoices. With this evidence, and being the sole provider, you can tabulate your monthly expenses towards the provision of your children's basic needs such as food, shelter, clothing, education, and medication. It will be upon the father of your children to counter your tabulations by way of an affidavit showing his capacity or incapacity in providing for them.
What are the chances that the court can refuse to attach his salary for child support?
The principle of the Best Interest of the Child underpins and reinforces the provisions of section 4(2) of the Children's Act. This section obligates institutions to adopt a course of action calculated to safeguard and promote the rights and welfare of the child. Should the father of your children fail to comply with maintenance orders, the court may issue orders directing the employer to deduct a portion of his salary to go towards your children's maintenance. If he fails to comply, he can be summoned to court to show why he should not be committed to civil jail.
Caroline Maina, an Advocate of the High Court and the managing partner in charge of Corporate and Commercial practice at CMK Associates
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.
Children's officer in your area
You have indicated that dialogue has failed and there is no formal agreement on how to share the parental responsibilities with the father of your children. The first step is to try and seek an audience with the Children's Officer near you for mediation and come up with a parental responsibility agreement. Failing this mediation, you can then go to court. Before going to court, you need to know that maintenance is an aspect of parental care and is the responsibility of both parents. Also, in the proceedings, an order for maintenance is intended to secure the best interests of children.
Needs and costs
Consider the basic needs of your children. These are food, shelter, clothing, healthcare, and schooling. Make a summary of the ascertained children's needs including their respective costs to 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 him to meet. The amount to be assigned as maintenance from the children's father will be at the discretion of the court, based upon the evidence and information given in your pleadings and the entire court proceedings.
How child support is determined
Bear in mind that the court will be guided by the income or earning capacity, property and other financial resources which you and the father of the child have or are likely to have, financial needs, obligations, or responsibilities, and the financial needs of the children and the children's current circumstances.
If the court gives a maintenance order, this order shall be enforceable even without an order for attachment of salary. Assuming that the father of the children does not comply, you will have the option to enforce the order by making an application for the attachment of his salary. This avenue is available to persons employed in the private or the public sector. Non-compliance with the maintenance order could be punishable by a jail term.