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-
sponsibility.
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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