CHILD CUSTODY AND MAINTENANCE IN KENYA

Child custody is always an emotive issue when the relationship between the parents has broken down. When the parents of a child do not agree as to who will stay with the child, the resultant dispute is a child custody dispute. Issues involving child custody will normally also attract resultant questions with regard to who maintenance of children and child support.

Child custody is divided into 2 types of custody:

1. Legal Custody:-  This refers to rights and responsibilities that are conferred on by a custody order. These include the responsibility to maintain a child.  It is only a parent who has been given legal custody of a child that is liable to pay child maintenance. This is the reason why most court orders in matters involving children will first grant joint legal custody before proceeding to deal with actual custody of the child and maintenance.
2. Actual custody:- Actual custody of a child is synonymous with care and control of a child. It is the actual possession of a child whether or not the possession is shared with the other parent or any other person. Thus whoever the court gives actual custody of the child, is the person who will live with the child.

Considerations for the Court in Making Custody Orders

1. Best interests of the child
2. Age of the child;
3. Wishes of the child
4. Wishes of the parents of the child
5. Issuance of other court orders relating to the child e.g. a care or residence order already made with respect to the child
6. Fitness of the parents
7. Wishes and needs of siblings of the child

Parental Right of Custody

Both parents to a child have the right to exercise parental care and responsibility over the child; including having custody of the child as both parents have equal rights and responsibilities. Nevertheless, to ensure the best interests of the child are foremost, courts often view the age of young children as a basis to grant wider custody to mothers to cater for the needs of such infants. Thus the parental right to custody may be regulated by considerations of the best interests of the child.

Types of Custody Arrangements

1. Joint custody – where custody is shared between the parents/guardians with a determination on when each parent may have actual custody of the child.
2. Sole Custody with Access – Sole custody granted to one parent and the non-custodial parent has a right to have the child visit or may visit the child in their home without taking custodial possession of the child.
3. Sole custody – where custody is granted to one parent and no custodial rights granted to the other parent.
4. Custody arrangements under a parental responsibility agreement – this is custody as determined under the terms of the parental responsibility agreement. This custody arrangement will need to be adopted as a court order to be binding on either party who have equal parental rights at the onset.

Who may apply for Custody?

A guardian; a parent; or a person with a legitimate interest in the welfare of the child may apply for a custody order.

Difference between Custody and Guardianship

Custody relates to control and possession of a child while guardianship relates to the holistic parental care and responsibility that a guardian/parent exercises over the child. Thus references to custody determine whom the child will live with on a day to day basis and who shall be in possession of the child and guardianship determines issues such as education; medical care as well as subsuming the question of who the child resides with.

However, Section 83 of the Children’s Act sets out the following principles guiding the court in making a custody order. The court must consider the following:

1. The conduct and wishes of the parent or guardian of the child
2. The ascertainable wishes of the relatives of the child
3. The ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his/her home in the last 3 years before the application to the court.
4. The ascertainable wishes of the child.
5. Whether the child has suffered any harm, or is likely to suffer any harm if the order is not made,
6. The customs of the community to which the child belongs.
7. The religious persuasions of the child
8. Whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether or not those orders remain in force.
9.  The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
10. The best interest of the child.

Divorce and Child Custody

Upon divorce, parties may address issues of child custody in their divorce settlement agreement. If parties come to an agreement, they may enter into a parental responsibility agreement which can be adopted as an order of the Children’s Court. Child custody and divorce suits are brought before separate courts as the Children’s Court has jurisdiction over children’s matters at first instance whereas divorce suit may proceed in the magistrate’s courts or even the high court as the case may be.

Child Maintenance

Child maintenance refers to the duties of parents to provide for the basic needs of the child. The basic needs are listed in Section 23 of the Children’s Act as:

• Food
• Shelter
• Clothing
• Education
• Medical provision

The Children’s Act in Section 91 provides that a parent, guardian or custodian of the child may apply to the court to compel the other party to pay maintenance for the child.

The court considers the financial ability of each parent in giving an order. This will require the parents to swear an affidavit of means which shows how the parents earn, vis a vis how they spend. Where the parent violates the order, it is a contempt of court and risks a jail term.

In conclusion, the guiding principle behind the making of either a custody or maintenance order is the best interest of the child. Once parents take this into account, it reduces the potential of lengthy litigation in court on matters involving child support and custody.

Authored by Henry Njuguna Adv, MCIArb

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