Getting Child Custody for Parents not Living Together in Kenya.
source:PinterestDo you have a child with a partner whom you did not get married to; or are you separated or divorced and you are seeking custody over your child/ren?
The rising number of divorce cases and separations has led to child custody being a frequent source of conflict between parents. This article aims to shed light on what child custody entails and the factors that courts consider when granting custody, in an effort to resolve the ongoing debate.
Child custody and parental
responsibility is a major concern in Kenya, especially in cases where the
parents are not married, after a divorce, or in the event of the death of both
parents. In Kenya, both parents have an equal responsibility to provide care
and protection for their child, regardless of whether they are married or not.
The well-being of the child is always the top priority in any matter related to
the child, and this is reflected in the law regarding child custody and
maintenance.
According to the Children's Act 2022 in Kenya, a child is defined as a person under the age of 18 years. Child custody, as defined by the Act, refers to the parental rights and duties that relate to the possession of the child.
Where do I start to seek child custody?
For child matters, it is always advisable to report at the Sub-county Children office where the child is living at the onset of the matter. Starting at the Sub-county Children's office helps to reduce the legal cost because the children's officer is a government official who provides free mediation to guide the two parents to dialogue and mutually agree on the custody. Further, it prevents the child from entering the justice system which can be detrimental to their wellbeing. It is also important to start at the children's office because, if a parent is not able to cover the legal cost, the children's officer can refer you to the National Legal Aid Services. this is a government legal aid program which offers free legal representation for all child matters. (To learn more about free legal aid, you can read our previous article "Do you have a child’s matter in court? Know your rights and entitlement). However, if parents cannot mutually agree, they may opt the court process and therefore should be financially prepared for legal fees.
What is child custody?
- Child custody is a term used to describe the
relationship between a parent or guardian and a child and pertains to a
child's guardianship. It is often used in children's courts to determine
which parent, relative, or any person with a legitimate interest in the
child's welfare, should be granted physical and legal custody.
Nature of Child Custody
There are various types of custody that can be granted in the courts depending with the nature of the case and the child/children in question. They include:Legal custody
- Legal custody refers to the parental rights and
duties that are given by a custody order, which include the responsibility
to provide the child with basic needs and to protect them from neglect,
abuse, and discrimination. Legal custody gives a parent or guardian the
right to make crucial decisions regarding the child's well-being and
upbringing, following a court order. The court considers several factors,
such as the child's best interests, age, wishes, siblings' wishes and
needs, and parents' wishes and fitness, before granting legal custody to a
person.
Actual custody
- Actual custody, also known as physical custody,
refers to the physical possession of a child, regardless of whether or not
the possession is shared with others. Actual custody occurs without a
court order. This ensures that the child is able to attend school without
any disruptions.
Sole custody
- Sole custody is when only one parent is granted
custodial rights and makes all decisions related to the child's
upbringing. Sole custody may be granted to one parent if the other is
deemed unfit, due to reasons such as drug or substance abuse, psychiatric illness,
child abuse, or a history of violence.
Sole custody with access
- In this case, custody is granted to one parent, but the non-custodial parent has the right to visit the child without taking custodial possession. One parent lives with the child and makes all decisions about the child's upbringing, but the non-custodial parent can visit the child from time to time.
source:PinterestConsiderations for Court in Making Custody Orders
The court may consider the
following, among others, when making a custody order:
- Best interests of the child
- Child's age
- Child's wishes
- Parents' wishes
- Other court orders relating to the child
- Parents' fitness
- Siblings' wishes and need
Parental Right of Custody
Both parents of a child have equal
rights and responsibilities to exercise parental care and responsibility,
including custody. However, the court may regulate this right in the best
interests of the child, such as granting wider custody to the mother for young
children.
Revocation of Child Custody Orders
Under Section 87 of the Children’s
Act, child custody orders remain in effect until the child turns 18 or until
the court discharges the order. A parent or party may apply to vary or revoke a
child custody order for various reasons, including:
- Unfitness of the parent with custody
- The child's increasing age and the father's wider
custody being in the child's best interest
- Request from the child for a change in custody
arrangements
- One parent leaving the country and the remaining
parent seeking primary custody
- Decreased standard of living of one parent, leading
to a better standard of living for the child with a varied custody order
- Presence of other siblings, leading to a need for the
child to spend more time near them
- Physical or mental disability of the child
Revocation of Child Maintenance/Support Orders
A parent or party may apply to vary
or revoke a child maintenance/support order for various reasons, including:
- The child requiring specialized medical care or
education beyond the age of 18
- Changes in the financial status of either parent
- Agreement between the parents to alter the
contribution and make it binding by the court
- The parent refusing to increase child support
payments and it being in the best interest of the child to have the amount
increased
- Increasing needs of the child, such as unforeseen
medical costs
- Need to bring the living standard of other
siblings/half siblings in line with that of the child in question
- The parent receiving child support being unable to use the money for the child’s needs, such as failing to spend the money on the child or misusing the funds.
Who can be granted child custody?
- Both parents have equal rights and responsibilities
towards their children, but when a child custody case arises, a competent
court considers the factors mentioned above and grants legal custody to
the person deemed fit. In most cases, mothers are granted legal custody of
their young children, but fathers may also be granted legal custody if the
mother is deemed unfit. Guardians, parents, or any person with a
legitimate interest in the child's welfare can apply for a legal custody
order in a children's court.
In some cases, parents may be given
both joint legal and actual custody, where responsibilities are shared between
them. For example, a court may order the parents to prepare a joint custody
agreement, which allows the child to spend time at both parents' homes and
outlines important details such as childcare arrangements, education, and
health.
In other cases, both parents may
have joint legal custody but only one parent has physical custody. This may
occur when it is not feasible for both parents to take physical custody, such
as when they live in different countries or when the child has lived with one
parent their entire life. Joint legal custody does not prevent the other parent
from visiting the child.
Who Can Apply for Custody
A guardian, parent, or anyone with
a legitimate interest in the child's welfare can apply for a custody order.
Difference between Custody and Guardianship
Custody refers to control and
possession of a child while guardianship refers to the overall parental care
and responsibility exercised by the guardian or parent. Custody determines who
the child will live with on a daily basis, while guardianship covers issues
such as education, medical care, and where the child resides.
Court Practice in Awarding Custody to Mothers
The legal system tends to grant
primary physical custody to the mother for young children, as it is believed
mothers are best suited to care for the basic needs of infants and young
children. The mother may only lose custody if she is proven to be an unfit
parent.
Child Custody for Fathers
Fathers have the right to apply for
custody, and the court may award them sole custody if the mother is unfit. If
physical custody is awarded to the mother, the court will determine the
father's access. Joint custody may also be granted if the court finds it
appropriate.
Divorce and Child Custody
Child custody can be addressed in a
divorce settlement agreement. If parties reach an agreement, they may enter
into a parental responsibility agreement, which can be made into a court order.
Child custody and divorce suits are handled by separate courts, with the
Children's Court having jurisdiction over children's matters and divorce suits
handled by the magistrate's court or the high court, as necessary.
Losing Custody of a Child
A mother may lose custody in severe
circumstances, such as if she is abusive, a drug user, or unable to care for
the child.
Custody Paperwork
A parent seeking custody will file
a suit in the appropriate court, typically the Children's Court. The matter
will go to a hearing and a report by the Children's Officer will be used to
determine custody. The parent may apply for sole or joint custody, and physical
custody, depending on their wishes.
Custody can be granted by the court
upon the application of a parent, guardian, or any person with the consent of a
parent or guardian and who has had actual custody of the child for three months
preceding the application. Sole custody may be granted if one parent is deemed
unfit to raise the child.
The issue of equal parental responsibility has been a source of conflict, especially between mothers and fathers after a divorce. The new Act granted equal parental responsibility to both parents. It outlines the
factors that the court takes into consideration before making a custody order,
including the child's wishes, physical, emotional, and educational needs, any
harm that the child may have suffered, and the likely impact of any changes on
the child.
In conclusion, children's welfare
is of paramount importance and courts take child custody cases very seriously.
However, parents have the option of reaching a custody agreement through a
parental responsibility agreement, which can be made into a court order. This
agreement ensures that both parents have equal rights and responsibilities
towards their child. It is important for parents and guardians to always put
their children's best interests first for their well-being.
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