Child Support, Custody and Maintenance

Introduction

The responsibility of child maintenance and support is regulated by the Children Act 2022 and the Constitution of Kenya. Child maintenance and custody are one of the fundamental issues that the courts do consider while acting on divorce or separation cases.

The courts are always guided by Article 53 of the Constitution which 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. Article 53(2) which provides that a child’s best interest is of paramount importance in every matter concerning the child, a provision preceded by a rider in Article 52 that elaborates certain rights to ensure greater certainty as to the application of rights and fundamental freedoms to certain groups of persons.

a. Child maintenance

Maintenance is an aspect of parental care and is the responsibility of both parents of a child. Maintenance orders are made in the best interests of the children and ought not to be oppressive or punitive to any party.

The constitutional principle of equal parental responsibility of both parents asserts that Parties seeking the intervention of the Children’s Court to secure maintenance for the upkeep of the child or children must also indicate what contribution they are making towards the support of the child or children. This is because both the mother and the father of the child have equal responsibility towards the upbringing of the child or children.

The law relating to maintenance of a child is contained in the Constitution of Kenya, 2010 and the Children Act. Article 53(1)(e) 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. Section 94(1) of the Children Act 2022 stipulates the considerations by which the Court shall be guided when making an order for financial provision for the maintenance of a child. These considerations include inter alia:

• The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future;
• The financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future;
• The financial needs of the child and the child’s current circumstances. Parental responsibility is a shared responsibility between the parents of a child.

The courts have observed that parental responsibility is not relegated to one parent alone. It requires joint effort although not exactly the same. Parties seeking the intervention of the Children’s Court to secure maintenance for the upkeep of the child or children must also indicate what contribution they are making towards the support of the child or children. This is because both the mother and the father of the child have equal responsibility towards the upbringing of the child or children.

Parental Responsibility

Undoubtedly, the Constitution emphasizes the importance of joint and equal parental responsibility. Article 53(1)(e) explicitly recognizes the right of every child to parental care and protection, which encompasses the shared parental responsibility of both mother and father, regardless of their marital status, in ensuring the child’s welfare and provision of basic needs. Parties have a joint responsibility towards their child/children and none is superior or inferior to the other as provided for under Section 30 and 32 of the Children’s Act of 2022.

Furthermore, no parent should use the best interest of a child to unfairly gain from the other parent as was held in the case of JOO vs A J M(2017)eKLR where it was observed that the best interests of a child principle should not be used by one parent to the detriment of the other.

Custody

Child custody refers to the legal guardianship of a child under the age of 18, which aims to uphold the best interests of the child above all else as outlined in Article 53 of the Constitution of Kenya. Every child is entitled to parental care and protection and shall wherever possible reside with his or her parents. There are two types of custody namely, the legal custody and actual or physical custody.

• Actual or physical custody is defined to mean the actual possession of the child by one of the parents. This determines whom the child would live with. The Courts can grant a sole physical custody to only one parent or a joint custody where there is a determination on how both parents spend time with the child.
• Legal custody means the responsibility to make major decisions by a parent in respect to a child. This includes fulfilling the parental rights and duties of the child including the place and manner in which time is spent. This grants a parent or guardian the authority to make important decisions regarding the child’s life, such as those related to education, health care, religion, and overall upbringing.

A child has a right to parental care and it is in the best interest of the child that he is brought up and cared for by his or her parent. This right can only be denied if it is proved with cogent evidence and valid grounds that a parent is not suitable or is incapable of taking care of the child. Ultimately, therefore, a child needs both of their parents which is their right, especially where a parent’s incapacity has not been proven.

The courts do consider the environment in which the children would be maintained in before granting custody to any of the parents. The courts have that held sharing of parental responsibility for children should not be arbitrary. It should be well laid out by the parties. Children courts have a responsibility, to pursue the procedure that least disrupts the lives of the children involved, and that least adds to the friction between warring parents.

Moreover, children of tender years are always given a preferential consideration with a delicate balance of their rights and best interests. Ordinarily, custody of children of tender years will often be granted to the mother of the child unless it is demonstrated that there are exceptional circumstances to grant custody to the father.

Unless there are exceptional circumstances that prevent the mother from providing care and protection, it is considered that the best interest and welfare of a young child are served by awarding legal custody to the mother.

Conclusion

In Kenya, child maintenance and support are important for the well-being of a child. The legal framework under the Children Act and the Constitution ensures the best interest of the child is upheld in all circumstances, by ensuring that both parents share responsibility, regardless of their relationship status. It is important for parents to understand the factors that determine maintenance. This would help the parents fulfill their obligations better, thus contributing to their child’s growth and wellbeing

The opinion expressed here in is purely that of the author. For further inquiries please contact our office on 0742028500.