Parents to equally share child maintenance

Separated or divorced parents could soon share equal parental responsibility if Parliament approves a proposed law.

The Children (Amendment) Bill, 2020, sponsored by Homa Bay Town MP Peter Kaluma seeks to have parents share responsibilities 50/50 as opposed to the current situation where the husband shoulders the burden.

In a report tabled in the National Assembly by the Labour and Social Welfare committee chaired by Mwea MP Kabinga Wachira, concurs with Kaluma's proposal to make it mandatory for father and mother of a child to have parental responsibility.

"Neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility,” the Bill reads in part.

Kaluma’s Bill also proposes to have unmarried parents share the rights of their children.

The current law tasks an unmarried mother with the primary parental responsibility of a child, requiring the father to assume the responsibility through a court order or a parental responsibility agreement.

Married parents have an equal parental responsibility under the current law.

“Where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility,” the Bill reads in part,” Section 24 (1) of the current Children Act states.

The same provision applies to couples who got married after their child was born.

The proposed legislation further seeks to allow a parent drop parental responsibility if a DNA test proves the child is not theirs.

The Wachira-led committee asked MPs to adopt Kaluma’s Bill without amendments, noting that it will make parents contribute equally to child support in case of divorce.

"The committee having considered the Bill recommends that the House passes it as it is," reads the report.

The Bill, the committee observes that the current Section 27 (2) of the Act provides for transmission of parental responsibility, in the event of death of a mother, to a father who has acquired parental responsibility if the father and mother were unmarried at the time of birth of the child.

Also, it provides that in the event of the death of a father who has acquired parental responsibility, the same is exercised by the mother.

"The amendment deletes the portion of the Act referring to the acquisition of parental responsibility in view of the earlier amendments," reads the report.

In the Bill, every parent has the right to... parental care of protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.

Under the family code, child support has the following basic principles.

It is everything indispensable for food, shelter, clothing, medical attendance, education, and transportation in keeping with the financial capacity of the family.

It is also joint (Whether married or not) and will be taken from the absolute community property. The same also applies to the provision of the child support of one spouse by a previous marriage or partnership.

it is in proportion to the resources and a mean of the parent and the needs of the child. At the same time, it can be reduced or increased proportionately, based on the reduction or increase of the child's need, hence it is final.

"It must be noted that if the child's father does not have the means nor capacity to find sufficient child support, then the obligation can pass to his family- including his parents (the child's grandparents) if they have the means to do so."