Getting your Child's Access for Separated or Divorced parents

 

Source:Pinterest

Child Access when you do not have custody 

When a relationship between two adults who have a child together ends and a family splits up, money can often become a major source of conflict between the parents. Despite the emotional turmoil, it is crucial for parents to prioritize the well-being of their children above all else. Parents who are not living together can maintain a positive co-parenting relationship by focusing on their children and moving past relationship problems.

What is child Access?

In Kenya, child access refers to the right of the parent who does not have custody of the child, to have regular contact with their child, who is under the care and custody of the other parent. It is recognized as an important aspect of parental responsibility, as it enables a child to maintain a relationship with both parents and enjoy the benefits of their love and support.

Under Kenyan law, both parents have equal rights and responsibilities towards their children, including the right to access. The Children Act, which is the main legislation governing child rights in Kenya, provides that every child has the right to maintain personal relations and direct contact with both parents on a regular basis, except in cases where such contact would be contrary to the best interests of the child.

Children Act 2022 section 105 (4) “Where a Court makes a custody order with respect to a child, the Court shall, in addition, give such directions as to any rights of access to the child on such terms as the Court may direct”

In cases where the parents are separated, divorced, or are not living together, the non-custodial parent has a legal right to apply for access to their child. The court may order access arrangements that are in the best interests of the child, taking into account factors such as the child's age, needs, and the ability of the parents to cooperate in implementing the access arrangements.

Overall, the aim of child access laws in Kenya is to ensure that the child's welfare remains paramount, and that both parents are able to maintain meaningful relationships with their children.

How can I apply for child access?

To apply for child access in Kenya, you will need to follow the legal procedures provided for by the Children Act. Here are the steps you can take:

Seek legal advice: It is advisable to seek legal advice from a family lawyer before proceeding with the application. The lawyer can guide you on the legal process, the documents you need to prepare, and the court procedures.

Fill out the necessary forms: You will need to fill out the relevant court forms to make your application. The forms can be obtained from the Children's Court or downloaded from the Judiciary of Kenya website.

Prepare supporting documents: You will need to provide supporting documents such as your child's birth certificate, proof of your relationship with the child, and any other relevant documents that may support your application.

File the application with the Children's Court: Once you have completed the forms and gathered all the necessary documents, you will need to file the application with the Children's Court in the area where the child resides.

Attend court hearings: The court will schedule a hearing to listen to your application and consider the best interests of the child. You will need to attend the hearing and present your case to the court.

Follow court orders: If the court grants you access, you will need to follow the access orders and attend all scheduled visits with your child.

It is important to note that child access cases can be complex, and it is recommended to seek legal advice and support throughout the process.

Must I be providing child maintenance for me to be granted child access? 

Child access and child maintenance are two separate legal issues, and one is not necessarily dependent on the other. While child maintenance is the responsibility of both parents, child access is a right of the parent who does not have custody of the child.

In general, a parent's obligation to pay child maintenance does not affect their right to have access to their child, and the court may grant access even if the parent is not paying child maintenance. Similarly, a parent's right to access their child is not dependent on the other parent's compliance with child maintenance obligations.

However, it's important to note that the court may take into consideration the parent's willingness to provide child maintenance when making a decision about child access. For example, if a parent has a history of neglecting their financial obligations towards the child, this may be considered when determining whether access is in the child's best interests. On the other hand, a parent who is regularly meeting their child maintenance obligations may be viewed more favorably by the court when making decisions about access.

Ultimately, the court's primary concern in any child access case is the best interests of the child, and the decision will be based on a variety of factors, including the child's relationship with each parent, the child's needs, and the ability of each parent to provide for the child's physical, emotional, and psychological needs.

Under what circumstances can a parent be denied access to their child?

In Kenya, child access may be denied to a parent in certain circumstances where the court determines that it would not be in the best interests of the child. Here are some of the situations where a parent may be denied child access:

When access would be harmful to the child: If the court determines that allowing access to a parent would be harmful to the child's physical or emotional well-being, access may be denied. For example, if the parent has a history of violence or abuse, access may be denied to protect the child from harm.

When access would interfere with the child's welfare: If the court finds that allowing access would interfere with the child's care or welfare, access may be denied. For example, if the non-custodial parent has a lifestyle that is not conducive to the child's well-being, access may be denied.

When the parent has abandoned the child: If the non-custodial parent has shown no interest in the child's welfare or has abandoned the child, access may be denied. The court may consider factors such as the length of time since the parent last had contact with the child, and the reasons for the lack of contact.

When the parent has not paid child support: If the non-custodial parent has not paid child support as ordered by the court, access may be denied until the parent fulfills their financial obligations.

When the parent poses a risk of abduction: If the non-custodial parent poses a risk of abducting the child, access may be denied to prevent the child from being taken out of the country or away from the custodial parent.

Overall, the decision to deny child access to a parent is made on a case-by-case basis, taking into account the best interests of the child. The court will consider all relevant factors and make a decision that is in the child's best interests.

I was granted access by the court but the parent with the child has denied me access to my child. What should I do?

If you have been granted access to your child by a court order, but the other parent is denying you access, there are legal steps you can take to enforce the court order. Here are some of the things you can do:

Talk to the other parent: The first step is to talk to the other parent and try to resolve the issue amicably. Explain to them that you have a court order granting you access and try to come to an agreement on how the access visits can take place.

Document the denials: Keep a record of all the times the other parent denies you access. Make note of the date and time of the denial, and any reasons given for the denial.

Seek legal assistance: If you are unable to resolve the issue through negotiation, you may need to seek legal assistance from a family lawyer. The lawyer can advise you on your legal options and help you to apply for an enforcement order from the court.

Apply for an enforcement order: You can apply to the court for an enforcement order, which requires the other parent to comply with the court order granting you access. The enforcement order may also include penalties for non-compliance, such as fines or imprisonment.

Attend court hearings: The court may schedule a hearing to listen to your application for an enforcement order. You will need to attend the hearing and present your case to the court.

Follow court orders: If the court grants you an enforcement order, you will need to follow the orders and attend all scheduled visits with your child. If the other parent continues to deny you access, you can seek further legal assistance to enforce the court's orders.

It is important to note that denying access to a parent with a court order may be considered contempt of court and can result in serious consequences. If you are being denied access, it is important to take action to protect your rights and your relationship with your child.

Attention! 

Source:online

Child access arrangements can sometimes be a source of conflict between parents, especially if they have different ideas about what is best for the child. Here are some of the common issues that can arise between parents in child access arrangements:

Disagreements about the frequency and duration of access visits: One of the most common issues that arise between parents is disagreement about the frequency and duration of access visits. One parent may feel that they are not seeing the child often enough, while the other parent may feel that the visits are too frequent or too long.

Disagreements about the location of access visits: Another issue that can arise is disagreements about where the access visits should take place. One parent may want the visits to take place in their home, while the other parent may prefer neutral territory or a public place.

Disagreements about travel arrangements: If the parents live far apart, there may be disagreements about who will bear the cost of travel or who will transport the child to and from the access visits.

Communication issues: Communication breakdown between parents can be a significant issue in child access arrangements. This can make it difficult for the parents to agree on the arrangements, and can lead to conflict.

Issues with child support: In some cases, issues with child support payments can spill over into the access arrangements. A parent who is not receiving the agreed-upon amount of child support may be less cooperative in making access visits happen.

Issues with new partners or blended families: When one or both parents enter into new relationships, it can complicate access arrangements. For example, the new partner may not want the child around during access visits, or there may be conflicts between step-siblings.

It's important for parents to communicate openly and work together to resolve any issues that arise in child access arrangements. If the parents are unable to come to an agreement, seeking the advice of a family mediator or lawyer may be necessary. Ultimately, the best interests of the child should be the top priority in any access arrangement.

Successful co-parenting relies heavily on effective communication between the parents. The children will remember the love and communication from their parents, not the money in the bank.

When does the access order cease? 

Children Act 2022 section 107 (6) “A custody order made in respect of a child, and any order in respect of access or maintenance of a child who is the subject of a custody order, shall cease to have effect when the child attains the age of eighteen years: Provided that the Court has power, on application made, to extend a custody, access or maintenance order beyond the child’s eighteenth birthday on such terms as the Court may deem fit”.

The order for child access ends when the child reaches the age of 18, which is the legal age of majority. At this point, the child is considered an adult and is free to make their own decisions about where they want to live and with whom they want to have a relationship.

However, there are some circumstances where a court may terminate or vary a child access order before the child turns 18. For example, if there has been a material change in circumstances since the access order was made, such as a change in the child's needs or the parent's living arrangements, the court may review and vary the access order.

In some cases, a court may also terminate a child access order if it is determined that the access is not in the best interests of the child. For example, if one of the parents has been abusive or neglectful towards the child, the court may terminate their access rights.

It is important to note that child access orders can also be temporary or interim in nature, and may be made for a specific period of time or until a further court order is made. In any case, it is important for parents to comply with any court orders related to child access, and to seek legal advice if there are any issues or disputes that arise.

Disclaimer: It is important to note that the information provided through this platform is for general informational purposes only and is not intended as legal advice. Therefore, information provided is not a substitute for obtaining legal advice from a qualified family advocate. The information may not be complete or accurate for your specific situation. You should not act upon this information without seeking professional legal counsel. Further, by providing information through this platform, I am not creating an attorney-client relationship. You should not rely upon any information provided through this platform in making decisions about your legal matters. If you have specific legal questions or concerns, you should consult a licensed attorney.