How can I compel my ex-boyfriend to pay child support?

Dear Vivian,

I have been a single mother for the last three years and the burden of taking care of my daughter alone is now heavier. My boyfriend took off after realising I was expecting his child. My daughter is about to join school and I cannot bear the additional costs alone. How can I ensure the responsibility is shared?

Edith Musyoki,
Wote, Makueni County

Dear Edith,

Article 53 of the Constitution notes that a child has the right to receive parental care and protection. This includes equal responsibility for the father and mother to provide for their child regardless of whether they are married or not.

Specifically, the Children Act provides the parents of a child shall have responsibility over the child on an equal basis, and neither the father nor the mother shall have a superior right or claim to that of the other in exercise of such parental responsibility whether or not the child is born within or outside wedlock.

The process of filing for child support can start with hiring a lawyer. A lawyer will draft a letter to the party who is meant to pay child support. This approach is used to avoid the long court process. Both parents will then sit down, in the presence of their lawyers, to draft a parental responsibility agreement. This agreement is binding on both parties. After all the issues on child maintenance have been settled, the lawyer will register the agreement in court and it will act as a court order.

Alternatively, if the party required to pay child support resists a parental responsibility agreement, you could move to court and file a case for child support. The court will consider what is in the best interest of the child and look at all the above-mentioned factors before granting an order for child maintenance.

Organisations that can help you file for child support include the National Legal Aid Programme (Naleap), the Federation of Women Lawyers (Fida-Kenya) and Clear, an initiative of the Kenya Christian Lawyers Fellowship. They can suggest you first consider a mediation session. A mediation session does not involve a lawyer but a neutral third party known as a mediator.

The aim of family mediation is for the parties to arrive at a solution of their own creation. This is because most family conflicts have emotional and relational components, as well as legal and financial implications. This process is voluntary. Therefore, both of you must be willing to be involved in the process. A successful session will result in a parental responsibility agreement.

Whichever option works for you, one principle will run through the sessions, which is referred to as the best interest of the child. Therefore, the sessions will not go into the details of your estranged relationship with your ex-boyfriend.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected])