Co-parenting 101: What separated fathers need to know about child support
The Children Act (2001) was discriminatory. For unmarried parents, it gave initial parental responsibility to the mother.
What you need to know:
- The Children Act (2022) establishes equal parental responsibility for both parents, regardless of marital status.
- This law aims to protect fathers from exploitation and ensure fair sharing of childcare duties.
- It introduces a court-enforceable parental responsibility agreement, addressing issues like visitation, decision-making, and financial obligations.
In a recent conversation, separated men battling mental illness cited conflicts over parental responsibility as a major stressor.
A local university lecturer shared his plight. His estranged wife and her family demanded weekly money for their four-year-old daughter's upkeep, in addition to covering all other costs like education, shelter, and entertainment. Despite his wife being a trained but unemployed nurse, she contributed nothing.
He also provided for his wife, sending money for rent, food, clothing, and other needs. Even during harvests, he sent her maize and potatoes, fearing the in-laws would permanently take his daughter if he didn't comply. This would deny him any contact with his child.
I asked if he knew about the Children Act (2022), which grants both parents equal responsibility and doesn't allow in-laws to transfer parental rights. He said he wouldn’t want to take his in-laws to court, despite suffering.
So, here's how men can effectively use child protection laws to guard against exploitation and assert their parental rights.
Legal provisions
The Children Act (2001) was discriminatory. For unmarried parents, it gave initial parental responsibility to the mother. The father had to acquire it through a court order.
It defines parental responsibility as “all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child's property in a manner consistent with the evolving capacities of the child.”
Parental responsibility included duties like providing adequate diet, shelter, clothing, medical care, education, and protection from neglect and abuse. However, it lacked mechanisms for sharing responsibilities, often burdening responsible men. In some cases, the man was expected to pay a caregiver to provide such services.
However, times have changed and things are different now.
The Children Act (2022) ensures neither parent can claim superior rights or extra burdens over the other, regardless of marital status.
Section 32(1) states that the “parents of a child shall have parental responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock.”
Unlike the previous Act, this law creates a co-parenting plan, and since they both have equal rights to the child, they equally share the responsibilities.
Once the parents agree, the court adopts the plan and serves it as a court order, which must be adhered to. Violations can lead to jail for one year or a Sh500,000 fine, or both.
The plan outlines how the child will spend time with each parent, joint decision-making, contact information, and visitation schedules. It covers holiday schedules, transport, healthcare, and extracurricular expenses. Changing contact information without notifying the other parent results in a year in prison or a Sh200,000 fine, or both.
Court of justice
Equal parental responsibility is mandatory in court.
Judge Lagat-Korir, in a July 2022 Bomet High Court ruling, stated, “Parental responsibility is not a favour or a carrot to be dangled.”
In a case where a father (LC) appealed a 2020 Magistrate's Court judgment, the court had ordered him to pay Sh8,500 annually for his child’s (DC) school fees, plus monthly contributions for food, medical care, electricity, and clothing f.
This is in addition to the annual contribution of Sh2,500 towards clothing, and monthly cash of Sh250 for medical attention, Sh750 (electricity), and Sh2, 500 (food).
The amount was half of what DC’s mother had sought. She described LC as a dairy and horticultural farmer capable of contributing towards the maintenance of the child.
While she was a part-time early childhood development (ECD) teacher, and her income was not sufficient to care for the child. They had cohabited and ended their union.
She wanted him to provide Sh5,000 per month for food, Sh16,500, annually for school fees, Sh500, monthly for medical care, Sh5,000, yearly for clothing and Sh1,500, each month for electricity.
During cross-examination, the mother testified that she was no longer an ECD teacher as her services were terminated. The father, on the other hand, had said he earned too little to even support his own family.
These notwithstanding, the court awarded only half of the amount requested.
The appellate court thus dismissed the case maintaining that there was “no fault with the judgment…the amounts awarded by the trial court were half the amounts that the respondent sought.”
And that the mother had “offered to cater for half of the maintenance costs so that each party would contribute 50/50 towards the needs of the child.”
The appellate judge ordered that “the parties provide equally for the subject’s (the child) needs.”
