CHILD CUSTODY & GUARDIANSHIP
Changing a Child Custody or Maintenance Order or other Welfare Order Pertaining to Children
When an order is issued relating to custody, guardianship or support of a child, the order stands until either it is discharged by the court or until the child turns 18. Thus under S 87 of the Children’s Act, custody orders endure until the child is 18 unless revoked or varied by the court.
Reasons why a Parent or Party may seek to apply to Vary (or Revoke) a Child Custody Order include:
- Unfitness of the parent having custody.
- Increasing age of the child such that child is no longer of tender years thus it is in the interest of the child that the father now be granted wider custody.
- Request by the child that either parent have more custody.
- One parent is leaving the country and the parent who is still resident in the country wants primary custody.
- There has been a lowered standard of living of one parent such that the best interests of the child would be better served by varying the custody order to result in a better standard of living for such child.
- Presence of other siblings such that it is in the interests of the child to spend more time nearer their siblings.
- Physical disability of a child.
- Mental affliction of the child.
Reasons why a Parent or Party may seek to apply to Vary (or Revoke) a Child Maintenance/Support Order include:
- The child needs specialised medical care beyond 18 years of age.
- The child needs support in their education beyond 18 years of age.
- The financial status of either parent has changed for better or for worse such that it is in the best interests of the child that the maintenance order is altered.
- If there is an agreement by the parents to alter the contribution by the parent in question and the parties wish this to be adopted by consent and made binding by the court.
- If the parent in question has refused to increase the child support payment and it would be in the best interest of the child to have the amount increased.
- Increasing needs of the child e.g. unforeseen medical costs which warrant a variation of the child maintenance order.
- Living standard provided to other siblings/half siblings to be brought to match that of the child in question.
- That the parent who has been receiving child support is incapable of using the money for the child’s needs e.g. they fail to spend the money on the child to the detriment of the child; or if they become of unsound mind and cannot prudently spend child support monies on the child or if they misappropriate the funds for the care of the child.
Reasons why a Parent or Party may Seek to Vary (or Revoke) a Guardianship Order include:
- The existing court appointed guardian is an unfit guardian
- The conditions that necessitated appointment of a guardian no longer exist e.g. a parent who was previously an unfit parent has become a fit parent due to change in lifestyle that had initially necessitated the appointment of a guardian.
- In the case of a testamentary guardian, the surviving parent objects to the testamentary guardian appointed by will of the deceased parent.
- If the testamentary guardian appointed under a will to act jointly with a surviving parent wishes to be the sole guardian of the child because the surviving parent is an unfit parent, they may apply to vary their appointment to make themselves the sole guardian of the child.
- That the child needs a guardian to help in their care or management of their property beyond the age of 18 because for example they suffer from an illness that will render them incapable of taking care of themselves beyond the age of 18.
- In certain cases, the court has varied a guardianship order in order to provide a child without a family a next of kin.
Who may bring an Application to Vary (or Revoke) the Order?
- A parent
- A guardian
- A child
- A relative of the Child
- A custodian of the Child
What Factors will the Court Consider when Hearing the Application for Variation?
On of guiding principles of children’s law in Kenya is that both parents have the duty to provide equal parental care and responsibility to the child. The court holistically considers applications for variation of orders taking into account past behaviour. The court will consider any changed circumstances of the case as it must always be guided by the best interests of the child. The court will also look at the conduct of the parents or guardians with respect to the child. The court considers the parental responsibility and care shown by the parties to the child and the length of time said parties have exercised said parental responsibility and care.