Law on Child Custody After Divorce or Separation
Child custody and parental responsibility is a major concern in Kenya, especially in cases where the parents are not married, after a separation, or divorce, or in the event of the death of both parents.
According to the law, 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.
Source:Pinterest102.
(1) A Court may, on the application of one or more persons qualified under
subsection (3), make an order vesting the legal custody of a child in the applicant
or applicants;
(2)
An order under subsection (1) may be referred to as a custody order, and the
person to whom legal custody of the child is awarded is referred to as the
custodian of the child.
(3)
Any of the following persons may be granted custody of a child— (a) a parent;
(b) a guardian; (c) any person who applies with the consent of a parent or
guardian of a child and has had actual custody of the child for a period of
three years preceding the making of the application, unless the Court is satisfied
on evidence that a shorter period is sufficient to justify an order made in
determination of the application; or (d) any person who, while not falling
within paragraphs (a), (b) or (c), can show cause, having regard to section
101, why an order should be made awarding the person custody of the child.
What is child custody?
Nature of Child Custody
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.
Joint Custody
Where joint custody of children is awarded to the parents or guardians, both parties are expected by law to be jointly responsible for the maintenance of the children.
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.
What does the Court consider when making Custody Orders?
The court will consider the following
when making a custody order as outlined in the Act Section 114 (2):
(a)the income or
earning capacity, property and other financial resources which the parties or
any other person in whose favour the Court proposes to make an order, have or
are likely to have in the immediate future;
(b) the financial
needs, obligations, or responsibilities which each party has or is likely to
have in the immediate future;
(c) the financial
needs of the child and the child’s current circumstances;
(d) the income, if
any, derived from the property of the child;
(e) any physical or
mental disabilities, illness or medical condition of the child;
(f) the manner in
which the child is being or was expected to be educated or trained;
(g) whether the
respondent has assumed responsibility for the maintenance of the child and, if
so, the extent to which, and the basis on which, he or she has assumed that
responsibility, and the length of the period during which he has met that
responsibility;
(h) whether the
respondent assumed responsibility for the maintenance of the child knowing that
the child was not his child;
(i) the liability of
any other person to maintain the child;
(j) the liability of that person to maintain other children
Do both parents have equal Right of Custody over their child?
What if there is disagreement over the custody?
Therefore disagreement pertaining custody can only be resolved through applying to the children Court
Can a Child Custody Order be revoked?
Under Section 107 of the Children’s Act 2022, child custody orders remain in effect until the child turns 18 or completes education or until the court discharges the order. However, 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
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 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.
Is Custody the same as 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.
What is the common practice in court when granting custody?
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.
Can a father of a child be granted Custody?
Fathers have the right to apply for custody, and the court may award them sole custody if the mother is found to be 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.
Is the Child Custody Order granted together with the Divorce?
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. However, 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.
Can a parent loose Custody of a Child after being granted by a court
A parent may lose custody in severe circumstances, such as if she/he is abusive, a drug user, or unable to care for the child.
How can I apply for child Custody?
A parent seeking custody will file
a suit in 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 Children's Act 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.
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.
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.
Note: This article provides general
information only and does not establish an advocate-client relationship with
any reader. Readers should seek legal advice from a qualified advocate for any
specific legal matter.
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