Understanding Child Custody in Kenya

Considerations for the Court when making Custody Orders

1. Best interests of the child
2. Age of the child
3. Wishes for the child
4. Parents’ wishes for the child
5. Other court orders related to the child, e.g. A care or residence order that has been made in respect of the child
6. Fitness of parents
7. Siblings’ wishes and needs
8. Etc

Parental Rights of Custody

Both parents of a child have the right and obligation to care for the child and have custody. Courts often consider the best interests of the child paramount to ensure that they are protected.

The age of young children can be used as a basis for granting mothers more custody to care for their infants. The best interests of the child may also be considered when determining parental custody rights.

Different types of custody arrangements

Joint custody – This is where custody is divided between the parents/guardians and a determination is made about when each parent can have custody of the child.

Sole Custody With Access – One parent is granted sole custody and the other parent may have visitation or visit the child at their home. The non-custodial parent does not take custodial possession.

Sole custody – when custody is granted only to one parent, and no custodial rights to the other.

Custody arrangements made under a parental liability agreement – This is custody as defined by the parental responsibility agreement. To be binding, either parent with equal parental rights must adopt this custody arrangement.

Who can apply for custody?

A custody order may be requested by a guardian, a parent, or someone with a legitimate interest in the welfare of the child.

There is a difference between Guardianship and Custody

Custody refers to the control and possession of a child, while guardianship is the overall parental care and responsibility that a guardian/parent exercise over the child. Custody determines who the child will live with and who has possession. Guardianship determines who the child lives with and how they are educated.

Court Practice in Providing Custody to Mothers

In the case of young children, the family law lawyers surrey tends to give primary physical custody to the mother because it is believed that mothers are well-suited to care for infants and young kids. If a mother is found to be unfit or otherwise harmful, she would most likely lose custody.

Fathers can have child custody

Fathers can apply for custody of their children. Depending on the evidence of an incompetent mother, the court could award sole custody to the father. In cases where physical custody has been granted to the mother, the court will decide the extent of access for the father. If the court is satisfied in other cases, it will grant joint custody to both parents.

Divorce and Child Custody

Parties may decide to address child custody issues in their divorce settlement agreement. Parties may reach an agreement and enter into a parental liability agreement. This agreement can be adopted by the Children’s Court. Separate courts are used for child custody and divorce cases. The Children’s Court is the first court to hear the matter. Divorce suits can be brought in the magistrates or high courts depending on the facts.

Losing Custody of the Child

A mother often gets physical custody of her young children. In extreme circumstances, such as when the mother is found to be unfit or abusive, a mother could lose all custody. A drug addict or abusive mother who is unable to care for the child.

Custody Paperwork

A child custody case is just like any other court suit, depending on the type and content of the orders sought. A suit will be filed by the parent seeking custody at the Children’s Court. Hearings will take place and the report of the Children’s Officer will help determine custody. A party can apply for sole custody or joint custody, and depending on their wishes, they may also apply for physical custody.