Abandoned mothers, deadbeat dads, and the legal way to pin them

Father’s Day is nearly upon us and while we salute those fathers who have been there for their kids, an increasing number of men are skipping out on their fatherly responsibilities.

Soni Kanake chats with three women struggling to get their baby daddies to own up, and a lawyer who advises on the way forward.

“How can I make Josh pay for his son’s school fees?” poses Veronica. At 26, she has taken up the sole responsibility of raising their son. She works with a group of single mums and says the men responsible have similarly refused to help raise their children.

“My son is almost five years old now and he doesn’t even know his dad,” says Veronica. “The last time I called him, I gave my son the phone to talk to him. Josh didn’t even say hi to his son; he just told him, ‘patia mama yako simu,’ with a stern warning never to give my son the phone again to talk to him.

“I was so desperate I would go to his workplace and harass him. I soon realised following up a grown man was ruining my self-esteem,” confesses Veronica.

“I have asked him if we could have a payment plan for support but he doesn’t cooperate. When my son joined school, I taught him a lesson. He had called me out of nowhere and said he needed an emergency loan of Sh200,000 and if I could help me. I told him I would and that my ‘chama’ would loan me the money. I then called him and told him my chama needed me to raise Sh100,000 to top up my shares so they could release the Sh200,000 and I only had Sh20,000. I asked him to borrow the Sh80,000 from his friends, which we would refund in two days. He organised and sent it to me on Mpesa. I just sent him a text after that saying, ‘Thanks, this year’s school fees is sorted.’

“ I would not trouble myself taking him to the Children’s Court to demand for child support because I feel it is not about the money.  I can struggle to feed and clothe my son. It is about his love for my son. That cannot be forced.  If he ever comes back, the door is always open for him to be a father to my son as it is my little boy’s right. If he never comes back, I will get my son a step-dad.”

After dating Shirley for five years and with a two-year-old toddler to show for their union, Alexander, in his late 30s woke up one day and ended his relationship on Whatsapp. Alexander helped out for six months but suddenly stopped. “I would ask him for money for milk and diapers but he always claimed he had no money yet he was working,” says Shirley.

Asked if she has thought of making him pay for child support, Shirley retorts, “Why should I force a grown man to take up his responsibility, to raise a child he sired?” Life hasn’t been easy without a regular income but Shirley says she would rather redirect the energy of chasing after him to fending for her son. “I did not give him the responsibility of fatherhood. God did. Let him deal with his maker,” she says of her baby daddy.

Her friends think it’s pride but she says her peace of mind comes first. “None of my friends know him like I do. This is a man who I will text, WhatsApp or call yet he will not respond,” she explains. “Of course, if he wants to help freely, I have no objection. He could start with my rent arrears and my son’s school fees,” she says with a laugh.

Anastasia’s story is complete with Season One and Two. “I first got pregnant as a teen and later in my 30s but both baby daddies refused to raise their daughters, 17 and three years,” she confesses. When she first got pregnant, her mum threw her out of the house. “Mum was too embarrassed and could not bear the shame when her 19-year-old daughter conceived,” explains Anastasia.  Luckily for her, her then boyfriend’s mum took her in. “Unfortunately, Rick was so violent,” she says of her first baby daddy. “He would abuse me both physically and emotionally and I had to leave their house when our daughter was two months old,” she says.

She struggled to raise Anna, who is now a Form Four student, alone. And when the mother-daughter duo thought they had already buried his memory, Rick reappeared, 17 years later!

“Two months ago, Rick called and said he wanted to see his daughter and showed up with Sh200. One wonders what his mission was, as when his daughter asked him to pay her school fees, he disappeared and blocked them on phone. The father of my second daughter left me to look for a rich woman to keep him, says Anastasia.

What to do if you want to get child support

Leah Kiguatha, an advocate of the High Court, answers some of the hard questions women ask regarding joint parental responsibility.

Does the Constitution make provision for child responsibility?

Article 53 of the Constitution states, “A child has a right to parental care and protection, which includes equal responsibility for the mother and father to provide for the child whether they are married to each other or not.”

Does the law define the said responsibilities?

Yes, the Law is clear. The parents are required to provide food, clothing, shelter, education and medical expenses.

What would be a good starting point?

A lawyer could try a soft approach, starting with a ‘gentle’ letter done in good faith. The aim is not to be on the warpath with your baby daddy, but to have him take up his part of responsibility. You can then sit down and come up with a Parental Responsibility Agreement, which binds both parties to the child’s needs. Once both parents are clear on who takes up what, the lawyer then registers the Parental Responsibility Agreement document in court, which then functions like a court order.

Are there any penalties if a man absconds his responsibility or defies the Parental Responsibility Agreement?

Yes, the court can attach his salary or commit him to civil jail if he does not execute his part of the agreement. Also, a court order has a consequence; any unpaid expenses accumulates and will have to be paid. That said, our legal systems are not sophisticated enough to catch up with these deadbeat dads.

How do the parents divide the parenting responsibility?

The parents can do a budget which they split. Alternatively, they can work with specifics, for instance where one parent takes up medical and the other school fees. However, the parent who does not live with the kids is required to top up on maintenance. The court orders a certain amount to be paid monthly.

How effective are our courts in dealing with child support?

A child’s best interests are of paramount importance in any matter concerning the child.

What about the man who is perennially broke?

Lacking money does not take away his responsibility. The court expects him to provide within his means. Brokenness is not a justification by law as the child/children still require to be fed, taken to hospital when ill or school fees paid.

Sadly, some men feel like they are benefiting the mothers by paying child support.

They overlook what they would be providing if the relationship with the mother was intact. Your children should not be punished because your relationship with the other parent has broken down. Your child is not your ex.  

Why do most women shy away from legally asking for child support?

I have heard it said that the main obstacle is legal fees, but the Children’s Courts have the lowest filing fees. It is also possible to self-represent, and there are several organisations which offer free legal advice and representation.

It is advisable to think long-term, in terms of what you are paying in legal fees vis a vis what it will ultimately cost you to let the other parent go scot-free.

Currently, the children’s court also has a panel of mediators who help the parties craft an agreement without a protracted court battle.

Are there any organisations that assist women with legal matters on child support?

Yes. The National Legal Aid (and Awareness) Programme (NALEAP) one. The Centre for Rights Education and Awareness (CREAW) also represents women in court, and CLEAR, which is a project of the Kenya Christian Lawyers Fellowship. FIDA also help by sending you to lawyers who are willing to assist with such cases pro bono.  

What are some of the pros and cons of having your child’s father’s name on his birth certificate?

It is presumed that he’s the father of the child thus reducing the need for a DNA test, which would slow down the child support process, and it gives the child an identity.

But if you want to travel abroad, you will need to look for your baby daddy and ask or beg him (depending on your relationship with him) to give you consent.

If he is a vicious man, he could refuse to cooperate and you might have to go to court for the court to determine that you can relocate with the child even without the father’s consent.  In case you get married and your new man wants to adopt your child, you will need the consent of your child’s biological father.

My advice is, since it is the mother who knows the kind of man she is dealing with, it is entirely up to her to decide on whether her child should carry the father’s name or not. This, however, requires a lot of wisdom.

Does the law require a man to continue paying for child support if his ex gets married?

Remarrying doesn’t mean his responsibility stops. His children are still his responsibility. Unfortunately, some men point to the mother’s marriage or remarriage as an escape route. Our culture also plays a part as it expects the new man to support the kids.

How do you strike a man’s name off a birth certificate?

It is very difficult to remove information from a birth certificate. It is actually easier to add certain details. It is, therefore, important to think in advance what information you would like included and what you would like to exclude and add later.