Under Kenyan law, the duty to maintain a child is independent of disputes relating to custody, visitation, or parental access.
Following the child support laws, a parent cannot stop paying child support even when the parent has been denied access to their child.
Despite parents arguing that child support is only viable when there is access to the child, the law places the welfare of the child at the center of all decisions affecting children.
“All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration,” Section 8(1) of the Children Act, 2022 outlines.
Child Support as a Legal Obligation
Kenyan law requires parents to contribute to the upbringing and welfare of their children, regardless of the nature of their relationship.
In addition, maintenance covers a child’s basic needs, including food, shelter, clothing, education, healthcare, and necessities for the child’s development, which are the legal responsibility of the parents.
Further, the law directs that, as child maintenance under the law is considered a responsibility owed to the child.
Suspending maintenance may affect the child’s education, healthcare, housing, or daily needs, according to the Kenyan Law.
In addition, financial support remains part of that responsibility, alongside other parental duties relating to care and upbringing, even after separation.
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Legal Options for Parents Denied Access
Parents who believe they are being unfairly denied access to their children have legal avenues available to them.
Among the legal actions parents can take are seeking court intervention to enforce existing visitation arrangements or requesting changes to custody and access orders.
Upon court review of the case and a determination that one parent is improperly limiting the other parent’s involvement in the child’s life, legal action is taken.
Alternatively, parents may also formalize parenting arrangements through signed contracts that outline the aspects of co-parenting.
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Enforcing Child Support
The law allows a parent, guardian, or a child on whose behalf a maintenance order was issued to move to court and seek enforcement when the person required to make payments defaults.
To begin the child support enforcement process, the individual must file an application with the court stating that the maintenance order has not been complied with.
Following the application, the court may then summon the defaulting parent to explain why the payments have not been made or conduct an inquiry into the person’s financial circumstances.
During the inquiry, the court can examine the parent’s income, assets, liabilities, employment records, business interests, and other sources of income to determine the parent’s ability to meet maintenance obligations.
According to Section 121 of the Children Act, where a court is satisfied that a person has willfully neglected or failed to make financial provision, it can order the recovery of child support arrears.
“Where the Court is satisfied that the respondent has willfully neglected or failed to make payment of any financial provision under a maintenance or contribution order, it may order payment of arrears and authorize enforcement measures, including attachment of earnings and property,” Section 121 of the Children Act provides.
Non-payment of child support can become a factor in future court proceedings involving parental responsibilities, according to the Kenyan laws.
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