Where is the money for child support?
There was this good friend (we’ll call her Angela) whose child’s father was overly reluctant to provide for maintenance-for the child that he sired.
We were up in arms to tell her that she should approach the authorities and see to it that he meets his lawful responsibility-particularly considering he was living a lavish lifestyle as he had a great job. One of our good friends on the other hand was totally against the issue saying she should be happy that she has the child to herself-for Angela’s peace of mind-which to her friend was more important than the first class lifestyle her son so rightly deserved. Our side, of course, made more sense and our dear friend filed a suit against this absconder of a father.
The first three or so months went quite well as he delivered his share of money as designated by the law. However, in the months that followed, the money trickled and slugged in-less than the required amount. Months later there was nothing coming in. And having no money for more legal appoints, she did what she knew best, left the baby with the father in his office. Despite her son’s wails, Angela knew he was in better hands … and life went on well until months down the line. Her friend brought her the newspaper saying there was a familiar baby in the paper. To her horror, it was her son-‘lost & found child’ now at a children’s home. She immediately took off to the home to find her son infested by scabies. What was worse is that both of them were screaming-Angela at her child’s deteriorated health, and her son running to the home’s caretakers as a stranger, Angela, was insisting on being over-familiar with him. Long story short, mother and child went home, and, clearly, our other friend’s advice is ruling the day because Angela is working tooth and nail to give her son the best. The phrase ‘child support’ was sent through the window.
Well. there are quite a number of similar stories because of the weak judicial system we have in Kenya. Lawyer Elaine Namachanja, agrees that we are likely to get too emotionally drained to continue fighting for the rights of our children to the end. She however says incessant pursuing of your child’s legal rights, even with the help of children’s rights bodies, should be able to provide justice. And these are her points of highlight:
The first thing you should do is to fight for the custody of the child before chasing after the support. She notes that the person who has been with the child all along usually has the upper hand in winning the custody. Due to the fact that the law puts the interest of the child first, they try not to disrupt the child’s life. The’ court also considers whether the accused has children on the other side. as they too are likely to be looking up to him/her for support. The law goes ahead and looks into whether the accused still has a source of income to be able to support the tabled demands and rules accordingly.
In fighting for custody, you need to prove that the child will be at their best with you. Your opponent may take over custody from you should he/she prove insufficient support on your part; citing behaviour that is not in the best interest of the child, like immorality, violence, negligence, ill health, mental instability, among others, and makes it evident that they are in better position to give the child the best. Ms Namachanja however clarifies that” the mentioned are not the only determinants of winning child custody. She says, there is no hard and first rule as sometimes there are special circumstances that make the judiciary rule the case differently.
After this, she says, you should file your child support suit soon enough-that is, within six months of the other party’s failure to contribute to your child’s upbringing. Doing it after that may work against you; as the law deems you capable of supporting your child solely.
In the process of receiving child support, the lawyer educates that it is done on the Law of Equity. This means that a party will not use the judiciary to frustrate the accused by demanding for more than what he or she can provide. The court looks at the living standard the accused had set for the child before the break up, in deciding the amount of money to be given for child support. For example, the law tries to ensure that he/she doesn’t pay school fees for a government school when the children had been going to a high cost school. On the other hand, the court sees to it that the complainant does not use the court to put the child in a standard way higher than the child was living in before the parents’ parting. Going by the school example, if the child has been going to a government school, the school fees the accused will be asked to provide will be for that kind of school.
The court also considers whether the accused has children on the other side, as they too are likely to be looking up to him/her for support. The law goes ahead and looks into whether the accused still has a source of income to be able to support the tabled demands and rules accordingly.
The law says child support should continue until a child is 18. But in the Kenyan setting the child is hardly independent at this time. Support through college is more like it, says the advocate.
An interesting scenario, is where the man has custody over the child and the mother is much more well-to-do than the man-thus in a very ideal position to provide child support. She says such cases hardly reach the courts. Something she attributes to the power of culture.
END: BL 28/16-17