Does a Mother have More Rights Over a Child than a Father in Kenya?

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Does a mother have more rights over a child than a father?

In Kenya, the Constitution and the Children Act 2022 recognize and protect the rights of both parents and the best interests of the child. Both parents have equal rights and responsibilities when it comes to their children. The law does not give preference to one parent over the other based on their gender.

However, there have been cases where some cultural practices and customary laws have given more preference and power to the mother in matters of child custody and decision-making. This is often due to deeply ingrained beliefs and biases that perceive the mother as the primary caregiver and nurturer of children. Nonetheless, it is important to note that these practices are not legally recognized and cannot be used to infringe on the rights of either parent.

In summary, both parents have equal rights and responsibilities in Kenya, and the law does not discriminate based on gender.

 

The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.

Parental rights are generally based on the biological connection between a parent and a child. If the father of your child is the biological father, then he has equal parental rights, including the right to access, custody, and access to the child.

However, since the father of your child has had no contact with your child since before the birth, it may be difficult for him to establish parental rights if you choose to contest them. This is especially true if you have been the primary caregiver for your child and can demonstrate that the father has not taken any steps to establish a relationship with your child.

It's important to note that parental rights and responsibilities in Kenya are governed by the Children's Act 2022 Part III, which sets out the rights and obligations of parents and guardians. If you have concerns about the father's potential parental rights, it may be helpful to seek legal advice from a lawyer who specializes in family law to understand your legal options and obligations.

 Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months.

The best place to start is at the Children's Office at the sub-county where your child currently resides. The Children's Office, also known as the Children's Department, is a government agency responsible for promoting and protecting the rights of children in Kenya. The office may be able to assist in mediating disputes between parents over child custody and access, and may also help to facilitate access arrangements. However, it's important to note that the Children's Office does not have the legal authority to make binding decisions on child custody and access disputes.

If the mediation at the children’s office is not successful, it is recommended to consult with a who can guide you through the legal process and provide advice on the best course of action to take. Under Kenyan law, parents have a right to access and maintain a relationship with their children. However, if there are disputes between the parents over contact and care arrangements, a court may need to be involved to make a determination.

While the Children's Office and mediation can be useful resources, it's still recommended to have a lawyer to guide you through the legal process, ensure that your rights are protected, and represent your interests in court if necessary. A lawyer can help you to understand your legal rights, advise you on the best course of action to take, and assist you in filing a legal petition with the court, if needed.

Also, a lawyer can help you file a petition with the court to establish custody, access, or contact rights with your children. They can also help you negotiate with the other parent, or represent you in court if a dispute arises.

It's important to act quickly if you have been denied access to your children, as delays can make it more difficult to re-establish a relationship with them. Consulting with a lawyer as soon as possible can help you to move forward with your case and work towards a resolution that is in the best interests of your children.

Mediation is another option for resolving child custody and access disputes outside of the court system. A trained mediator can help parents negotiate an agreement that works for both parties and is in the best interests of the child. However, if mediation is not successful or if one party is not willing to participate, legal action may still be necessary.

I am not a working mother. Does that mean that I cannot have primary care (custody) over my child?

No, being jobless does not automatically disqualify you from having primary care (custody) over your child. The primary consideration in child custody cases is the best interests of the child, and the court will take a variety of factors into account when making a determination.

Factors that the court may consider in child custody cases in Kenya include the child's age, the physical and emotional needs of the child, the capacity of each parent to provide for the child's needs, the relationship between the child and each parent, and any evidence of domestic violence or abuse.

While having a stable income can be a factor that the court considers in custody cases, it is not the only or the most important factor. The court will also consider other factors, such as your ability to provide a safe and stable home environment, your relationship with your child, and your willingness to promote the child's relationship with the other parent.

It's important to note that each custody case is unique, and the outcome will depend on the specific circumstances of your case. If you are seeking custody of your child and are concerned about your jobless status, it's recommended to consult with a lawyer who can advise you on your legal rights and help you navigate the legal process. A lawyer can also help you present your case in the most favorable light to the court, and work towards a resolution that is in the best interests of your child.

The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers. 

If you and the father of your child were never married, you are the legal custodian of your child in Kenya by default, and the father has no automatic legal right to take your child away from you. However, the father may be able to seek custody or access rights through the courts.

If the father of your child is threatening to take your child away from you, it's important to take this threat seriously and take appropriate steps to protect your rights and your child's best interests. The first step is to consult with a lawyer who can advise you on your legal rights and help you navigate the legal process.

If the father wants to seek custody or access rights, he would need to file a petition with the court and prove that it would be in the best interests of the child to grant him custody or access rights. The court will consider a variety of factors, including the child's physical and emotional needs, the capacity of each parent to provide for the child's needs, and the relationship between the child and each parent.

Having a lawyer to represent you in court can be essential in ensuring that your rights and your child's best interests are protected. Your lawyer can help you present your case in the most favorable light to the court, and can help you negotiate any access or access arrangements that may be in the best interests of your child.

It's important to take threats of child abduction seriously and to act quickly to protect your child's well-being. If you have reason to believe that your child may be at risk, you may need to seek emergency legal assistance to obtain a court order to protect your child's safety.

Can I refuse the father to have contact with my child if he does not pay child support?

No, you cannot legally refuse the father to have contact with your child if he does not pay child support in Kenya. Child support and access are separate legal issues, and one cannot be used as a bargaining chip for the other.

Even if the father is not paying child support, he still has the right to have access to his child, and denying him that access could be seen as a violation of his parental rights. However, if the father is not paying child support, you can take legal action to enforce the child support order and compel him to pay what he owes.

If the father is not meeting his financial obligations to your child, you can seek enforcement of the child support order through the Children's Court. The Children's Court has the authority to issue an order compelling the father to pay child support, and can also take steps to enforce the order, such as garnishing (withhold for child benefits) his wages or placing a claim on his property.

It's important to note that the best interests of the child are the primary consideration in all matters relating to child custody and support. If you have concerns about your child's safety or well-being during access with the father, you may be able to seek a modification of the custody or access order to better protect your child's interests.

If you are unsure of your legal rights or have concerns about your child's well-being, it's recommended to consult with a lawyer who can advise you on your options and help you navigate the legal process.

 What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact?

If parents cannot agree on how to exercise their parental rights and responsibilities of care and contact on their own, it is encouraged they report to the children’s office for mediation whereby if they come to a consensus, they can sign a joint agreement.

If the parents still cannot arrive at an agreement at the children’s office, the children’s officer will provide them with a referral letter to the court, or else, either parent may file a petition with the Children's Court seeking a custody order, a access order, or both. The Children's Court has jurisdiction over matters related to child custody and access, and can make orders that are in the best interests of the child. The court will consider a variety of factors when making a determination, including the child's physical and emotional needs, the capacity of each parent to provide for the child's needs, and the relationship between the child and each parent.

The court may also consider any evidence of domestic violence or abuse, as well as the child's own preferences and wishes, depending on the child's age and maturity. The court will aim to make an order that is in the best interests of the child, and that provides for a safe, stable, and nurturing environment.

If you are considering seeking a custody or access order through the Children's Court, it's recommended to consult with a lawyer who can advise you on your legal rights and help you navigate the legal process. A lawyer can also help you present your case in the most favorable light to the court, and work towards a resolution that is in the best interests of your child.

Can a parent refuse the other parent’s contact with the minor child if there is no court order?

If there is no court order in place governing child custody and access, both parents have equal legal rights to the child, and neither parent can legally deny the other parent access to the child.

In Kenya, the law recognizes the equal rights of both parents to the custody and care of their child, regardless of whether they were married or not. This means that each parent has the right to spend time with their child, and to make decisions about the child's upbringing, education, and healthcare.

If one parent refuses to allow the other parent access to the child, the other parent may need to seek legal assistance to enforce their rights. The first step would be to try and resolve the matter amicably, perhaps through the help of the children’s office, a mediator, family counselor or other trusted individuals.

If that doesn't work, the parent who is being denied access to the child can seek a court order from the Children's Court, which will determine the custody and access arrangements that are in the best interests of the child. The Children's Court has jurisdiction over all matters related to child custody and access, and can make orders that are binding on both parents.

It's important to note that if there are concerns about the child's safety or well-being during visits with the other parent, you can raise these issues with the court, and the court may take appropriate steps to protect the child's interests.

 Can the minor child decide where he or she wants to live if the parents are separated?

In Kenya, the law does not specify a particular age at which a minor child can decide where he or she wants to live if the parents are separated. However, the child's preference may be taken into account by the court as a factor when making a determination on custody and access issues.

When making a decision about custody and access, the court's primary consideration will be the best interests of the child. This means that the court will look at a variety of factors, including the child's physical and emotional needs, the capacity of each parent to provide for the child's needs, and the relationship between the child and each parent.

The court may also consider any evidence of domestic violence or abuse, as well as the child's own preferences and wishes, depending on the child's age and maturity. If the child is mature enough to express a reasoned preference, the court may consider that preference, along with other factors, in making a determination about custody and access.

It's important to note that the court's decision will be based on a holistic evaluation of all relevant factors, and the child's preference will not necessarily be determinative. The court will aim to make an order that is in the best interests of the child, and that provides for a safe, stable, and nurturing environment.

If you are seeking custody of your child or are concerned about your child's well-being, it's recommended to consult with a lawyer who can advise you on your legal rights and help you navigate the legal process. A lawyer can also help you present your case in the most favorable light to the court, and work towards a resolution that is in the best interests of your child.

How can I get full custody of my child without going to court?

In Kenya, it is not possible to obtain full custody of a child without going to court. This is because child custody and Access arrangements are legally binding and can only be determined by a court of law. Even if you and the other parent of your child have come to an informal agreement about custody, this agreement is not legally enforceable and can be changed at any time.

If you want to obtain full custody of your child, you will need to file a petition with the Children's Court seeking a custody order. In your petition, you will need to demonstrate that you are the best parent to provide for the child's physical, emotional, and psychological needs, and that it is in the child's best interests to live primarily with you.

The court will consider a variety of factors when making a determination, including the child's physical and emotional needs, the capacity of each parent to provide for the child's needs, and the relationship between the child and each parent. The court may also consider any evidence of domestic violence or abuse, as well as the child's own preferences and wishes, depending on the child's age and maturity.

It's recommended to consult with a lawyer who can advise you on your legal rights and help you navigate the legal process. A lawyer can also help you present your case in the most favorable light to the court, and work towards a resolution that is in the best interests of your child.