One of the most gut-wrenching decisions parents have to make when they separate or divorce is, “Who’s going to take the kids?”
This is why child custody in Kenya is essential. Child custody laws are a way to determine with whom a child will live and who makes decisions on their behalf, and support parents in sharing the duties of raising the child.
These laws are designed to protect kids and ensure their interests come first, no matter what happens in the relationship between their parents.
Whether you’re going through a divorce in Kenya or simply interested in child custody in Kenya, this article will guide you through everything you should know in basic, clear-cut terms.
By the end, you’ll learn the different types of custody, how the courts determine custody and how to apply for custody of a child in Kenya.
What is Child Custody in Kenya?
Child custody in Kenya concerns the legal and practical relationship between a parent (or a guardian) and their child under 18.
The issue is who meets the child’s day-to-day needs, food, shelter, school, and who takes the high-stakes decisions, like where they go to school or the kind of medical care they should have.
The primary aim of child custody laws in Kenya is to ensure that the life of a child remains stable, safe and happy regardless of whether their two parents are together or not.
The Children Act of 2022 is the linchpin of child custody in Kenya, stating that the “best interests of the child” must always be paramount.
That means that courts are intended to consider the child’s best interests, not what the parents want or what’s easiest for them.
If you are a mother, a father, or a guardian, it will be beneficial for you to know the basics of child custody in Kenya and what it entails.
How Child Custody Is Decided in Kenya
There are various ways to arrange custody in Kenya, and understanding the options allows you to make an informed decision about what could be best for your family.
Below are the typical child custody issues in Kenya:
Legal Custody
This pertains to who can make big decisions about the child, such as education, health care, and religion. Legal custody can be:
- Shared or Joint Legal Custody: Decisions are made by the parents together. For instance, the two of them may agree about which school the child attends.
- Sole Legal Custody: One parent gets to call all the big shots, usually when the other cannot make up decisions (for instance, when the other is missing in action or unable to be there for the child).
Physical Custody
This is the amount of time spent with each parent. It can be:
- Shared Physical Custody: The child divides their time between the two parents, spending substantial time with each.
- Sole Physical Custody: The child lives with one parent, with visitation rights (known as “access” in Kenya) typically granted to the other.
- Sole Custody with Access: One parent has total custody of the child, and the other has the right to visit the child occasionally. This is typical when one parent is more fit to serve as the primary parent.
Parental Responsibility Agreement
The parents may draw up a customized custody plan for a child in Kenya through mediation. Kenyan child custody lawyers can help parents with their custody case. The court can order that a plan like this become an official part of the case if it is in the child’s best interest.
All child custody types in Kenya are adapted according to different families’ circumstances. For instance, joint custody is often great when you can get along and figure things out, but sole custody may be effective if one parent can’t properly care for the child.
Who Takes Custody of a Child After a Divorce in Kenya?
There is no automatic rule that the mother or the father gets custody. Instead, it’s situational and depends on the child’s best interests.
Here’s how it usually works:
Equality of Parents
The mother and father have the same rights regarding getting child custody in Kenya, regardless of marriage. This is opposed from a legal point of view to having one parent a “greater” parent of the child than any other.
Joint Custody Preference
If both parents are fit and can get along, a joint custody could be awarded in favour of sole custody in Kenya. In this way, neither parent misses out on the child’s life.
Mother’s Advantage for Young Kids
In the past, mothers frequently received custody of children younger than 10, especially infants, simply because they were perceived as the primary caregivers. But as the High Court decision on child custody in Kenya shows, fathers can win custody if they prove he is a better parent.
Father’s Custody Rights in Kenya
Dads have the right to full custody if they can prove the mum is unsuitable (for example, neglectful or absentee). Kenyan courts are slowly evolving regarding fathers’ custody rights in Kenya following judgments similar to the one made by Justice Ngugi in 2022.
Parents can decide on a custody plan on their own after a divorce. If they disagree, the court intervenes. In either case, the objective is to maximize the stability of the child’s life.
The Legal Process for Child Custody in Kenya
If you are looking for information on filing for child custody in Kenya, the process may seem daunting, but it is straightforward and includes the appropriate steps.
Here’s a primer on the child custody process in Kenya:
Hire a Lawyer
You can begin speaking with child custody lawyers in Kenya. They’ll ensure you know your rights and have the documents you need. A lawyer can also advise you on which court (Children’s Court or Family Division of the High Court) to file in.
File a custody petition with the court.
This document should include:
- The name of the child and his date of birth.
- Your relationship to the child.
- Reason for custody (e.g., divorce, separation, or the other parent is unfit)
- Examples of your ability to care for the child include income or a stable home.
Serve the Other Parent
The other parent has to receive a copy of the petition to respond. They’ll have 30 days to file defences or accept your offer.
Mediation (Optional)
The court may recommend that parents attempt mediation before they go to court to decide a custody plan. This is quicker and less stressful.
Court Hearing
If mediation doesn’t work, the parents make their case in court. If the case has been referred to a Children’s Officer, they could make a report, and the judge in Kenya will rule in the child’s best interest.
Court Ruling
The judge makes an order for custody, which could be joint, sole access, or sole custody with access. The court may also issue a child custody and maintenance order in Kenya, which compels one parent to be liable and pay for the child’s upkeep.
The procedure for child custody in Kenya may be slow, especially when parents are at loggerheads. Experienced child custody lawyers in Kenya can help smooth the process and decrease the stress.
Rights of Each Parent Under the Law
Both parents have equal child custody rights in Kenya, but what does that mean in practice? Here’s a breakdown:
Father’s Custody Rights in Kenya
Fathers may petition for legal and physical custody. Courts no longer take for granted that mothers are the best caregivers. If a father can demonstrate that he’s a stable, involved parent, his chances of securing custody are pretty good.
Mother’s Rights
Moms often receive custody of young kids under 10, at least unless they’re unfit (abusive, neglectful). However, a woman can be denied custody rights in Kenya if the court determines she cannot provide a stable living environment.
Joint Obligations
Regardless of who the custodial parent is, both parents generally share the duty of supporting any children in Kenya. This means they share the child’s financial and emotional needs, unless a higher court rules otherwise.
Parents in Kenya may wish to draft a child custody agreement to minimize the chances of taking the dispute to court. This is the agreement on how they will share custody and responsibilities, which can be rubber-stamped by the court.
Changing Custody or Handling Disputes
What if circumstances change once a custody order is established? If there has been a significant change of circumstances, such as one parent moving overseas, becoming unfit, or the child’s needs changing.
To switch custody, you’d bring a court petition stating why the current one doesn’t work. The court will reconsider the case, particularly about the child’s best interests in Kenya.
Custody battles in Kenya are not always pretty or straightforward. For instance, if one parent attempts to take the child out of Kenya without permission, the other can file an urgent court application to prevent it.
It is common for the parties to go to mediation to resolve their differences before the court. If the non-custodial parent is denied this opportunity, they may also petition the Court in Kenya to intervene in child access.
What happens if the parent with custody wants to relocate?
If a parent wishes to relocate with the child (such as to another city, or even out of the country), this requires the other parent’s agreement or a court order. The court will determine if the move is in the child’s best interest, including factors such as school, family connections and stability.
Custody and Maintenance of Children in Kenya
Child custody in Kenya comes hand in hand with maintenance. Custody concerns who the child resides with and who makes decisions, and maintenance involves paying for the child.
Legally, both parents must meet the financial needs of their child, such as food, school costs, and medical care, even if they do not get primary custody.
The court may require the non-custodial parent to pay a certain monthly amount based on income and the child’s needs. If a parent fails to pay, they could potentially face penalties, such as fines or jail.
Conclusion
However, maneuvering child custody in Kenya can be an uphill task, but what you want is to ensure that your child is in a safe, happy, and stable environment. Whether you are seeking child custody after divorce in Kenya, defending your father’s custody rights in Kenya, or simply wondering how child custody works in Kenya, the law will always act to protect the best interests of your child.
Understanding the kind of child custody in Kenya and having good child custody lawyers in Kenya gives both parties an assurance and a way out.
If you have a custody issue, you are not alone. Hire a family lawyer to help you with your legal child custody process in Kenya.
FAQs
Who is awarded child custody in Kenya?
The court considers the child’s age, needs, safety, and the home environment that both can offer. The best interest of the child is paramount in Kenya.
Can a man get full custody of a child in Kenya?
Yes, if the father is demonstrated to be the better caregiver and the mother is unfit or incapable of offering a stable home. Recent court judgments on child custody in Kenya corroborate this.
At what age can a child decide which parent to live with?
It’s not a fixed age, but courts would generally consider other factors in a child of around 12 or older who is mature enough for courts to assume the child has a clear preference.
What does Kenyan law say about joint custody?
When parents are fit and capable of cooperating, joint custody is preferred. They could both have an equal say in decisions and/or equal physical custody.
