I have children from a previous relationship and would like to know if my spouse is obligated by law pay me child support. If so, what should be considered in setting the payment amount?
Irrespective of any prevailing relationship between parents, their responsibility to raise and care for a child is never a secondary or an afterthought conversation. It is a Constitutionally driven responsibility affirmed at Article 53 (1-e), where the equality in the role is clearly stated.
While the law is the biggest friend to children, it is men and women who give it life, through implementation. It is therefore important not to assign culpability to the law owing the excesses or inadequacies of human beings.
Child support is often a responsibility given to the non-custodial parent, who remits to the custodial parent a clearly defined sum of money each month to leverage care of the child’s needs.
Such amounts are often stated in Parental Responsibility Agreements, if spousal bitterness does not impede ability to voluntarily concede different roles as parents. If not, the same can be set through a court order if one of the spouses moves the court seeking direction.
When a court sits to deliberate any matter regarding child support it gets guided by Section 83 (1) of the Children’s Act, in pursuance to Article 53 (2), which places emphasis on the best interest of the child principle.
The Court will look at several factors enumerated as follows: first seek to understand the wishes of the child, parent(s) or guardians, besides the wishes of the child’s relatives if any.
Second, listen to the ascertainable wishes of any foster parent, or any person who has had actually custody of the child and under whom the child has made his home in the past three years before the application is made.
Third, listen to the ascertainable wishes of the child: fourth, follow to discover whether the child has previously suffered any harm or is likely to suffer such if the order is made. Fifth, consider the customs of the community to which the child belongs, as well as the religious persuasion.
Sixth, to ascertain whether a care order or supervision order or personal protection order or an exclusion order has been made in relation to the child concerned, and if the same remains in force. In the presentation of the things that the court considers, a new spouse, whether male or female, is not captured as a consideration. The outright answer is no.
Section 94 of the Children’s Act provides the court with what to consider when allocating support for the non-custodial parent. The court will be keen to understand 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 court reviews the financial needs, obligations or responsibilities for each party, both in the current and future context. It is not over till the court review the financial needs of the child and gets to understand the child’s prevailing circumstances, besides interrogate if there is income or earning capacity from any property and other financial resources bestowed on the child.
The status of health of this particular child is checked to determine if any physical, or mental disabilities, illnesses or medical condition pre-exist. Further examine and determine the manner in which he is being or was expected to acquire education or training. In addition, the court will review circumstances of any of the child’ siblings, to see how its decision could disrupt the circumstances.
Since it is a case against the person for whom the order is sought, the court will seek to know if the respondent has assumed responsibility for the maintenance of the child and if so, the extent to which and the basis on which he has assumed that responsibility and the length of the period during which he has met that responsibility.
If the child biologically belongs to the purported father, the court will want to know whether the respondent assumed responsibility for the maintenance of the child knowing the child was not his child, or knowing that he was not legally married to the mother of the child.
Moreover, the court will want to understand the liability of any other person to maintain the child, and lastly, the ability of the person, for whom the order is sought, can be able to maintain other children.
It is clear that spouses outside the collapsing union are not part of this child support businesses. Based on this assumption, then the court cannot invite your new wife to this kind of conversation. As per the law of contract she is not privy to the contract that existed between you and the mother of your child.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
