How child custody is determined

i Wakili.

Could you please tell me

how is child support deter-

mined in a divorce or child

support case?

Dear Reader,

Before alluding to child-specif-

ic laws, the readers need to know

that right to the inherent digni-

ty of all persons, including chil-

dren, is given in Article 28 of the

Kenyan Constitution.Further, the

Constitution at Article 53 (2) and

consequent statutory laws. in par-

ticular Section 4 (2) and 3 (b) ofthe

Children’s Act. direct that a chil-

drenS best interests are of para-

mount importance in every mat-

ter concerning them. On issues of

divorce, it is mandatory to invite

Article 53 (1-e)ofthe Constitution,

which grants every child the right

to equal purental care and protec-

tion. irtespective Of whether such

parents exist in a marriage or not.

This is the first consideration the

court makes when faced with

an issue of child support. wheth-

er,in dissolution proceedings or

just a child support petition. The

other foundational principle is

found in Article 43 of the Consti-

tution, which offers ewry person

the right to the highest attaina-

ble health standards, including

healthcare services and reproduc-

equate housing, with reasonable

standards of sanitatiom Arti-

cle further offers the right to ac-

cess sufficient food of acceptable

quality and for one to be free from

hunger. similarly access to clean

and safe water, besides the right

to social security and education.

Similar provisions specific to chil-

dren are emph asised in Article 53

(I-a to c). Since the child is depend-

ent. it becomes the responsibili-

ty of the parents and government

to provide such services. which

are defined as rights, to avoid sit-

uations where people and gov-

ernment claim lack or absence of

funds to support.

The law anticipated two essen-

tial things on parenting: first, the

likelihood of a child being borne

of irresponsible parents or par-

ents: and second. the probable

misunderstanding and difficulty

for palents to agree on independ-

entroles when their relationship

experiences turmoil. become un-

stable and likely unreliable to

the well-being of a child. which is

why Alticle 53 (IQ) is categorical

on equal parental responsibility.

If moved to determine child sup-

port will, the court first recognis-

es the absence of’ a wilfUIIy writ-

ten Parental Responsibility Agree-

ment. If there is proof that such

an attempt failed to materialise,

it may proceed so. If’ not. the court

will likely request a Court An-

nexed Mediation process to lead

to parental agreement on such

matters. through the help of Di-

rectorate of Children services iffa-

vour and will prevail between the

feuding parents.

The court in determining child

support will be guided by the con-

cept of custodial and non-custo-

dial parenting. Since the custodi-

al parent will physically stay with

the child. the threshold set by law

is tbr the non-custodial parent as

espoused at Section 94 of the Chil-

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dren Act, this includes: first, the

court u)nsiders. income or earn-

ing capacity property and other fi-

nancial resources which the par-

ties or any other person, in whose

fawur an order can be made, have

or are likely to have in the fore-

seeable future; second, the finan-

cial obligatioms or responsibilities

which each party has or expect-

ed to have in the foreseeable fu-

ture: thirdly the financial needs

ofthechild and the child’s curl? nt

circumstances; föufth, the income

or earning capacity, if any. proper-

ty and other financial of

the child: fifth. the court will pay

attention to any physical or men.

tal disabilities, illness or medical

condition of the child: sixth. the

manner in which the child is be-

ing or was expected to be educat-

ed or trained: sixth, the court scru-

tinises the circumstances of any

of the child’s siblings: seventh,

the court will recall the customs,

practices and religion of the par-

ties and the child: eighth, will be

whether, the parent from who

support is sought has assumed

any such responsibility and for

long, and in what manner; ninth,

will be whether such parent as-

sumed responsibility to maintain

the child without fiBt knowing if

he or she were the real biological

parent of the child: and tenth. the

court will review the liability of

any other person to maintain the

child and the liability ofsuch per-

son to maintain other children.

AS elaborated , the court mainly

relies on the current circumstanc-

es when determining the amount

of child support payments. If

such conditions change. one can

go back and request the court to

modify child support terms. Note

that the change in circumstanc-

es must be significant to justify

a review of the child support or-

ders. ‘Ihere are consequences for

non-remittance or payment of’

child support. If the party With

such responsibility fails to remit

payments despite child support

0111ers, one may request the court

by a petition of contempt of court

to enforce its orders. The court

will summon the respondents to

explain the reasons for non-pay-

ment. The court can enf01ve child

support orders by issuing orders

to recover the arrears, attachment

of the respondent’s property or

salary, prevent the respondents

from selling or transferring their

assets. or commit the respond-

ent to jail. Remember, every child

has right to support irrespective

of hot,v they came to be. cohabita-

tion or marriage. “Ihe result con-

stant. uncontested parental re-


Eric Mukoya is the Executive Di-

rector, Legal Resources Foun-

dation Trust. Doyou have a le-

gal problem you would like ad-

dressed by a lawyer? Please email

your to DN2Parenting@

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