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Child Custody & Guardianship

Understanding Child Custody in Kenya

By 3 Sep 2021Mar 6th, 2022No Comments


Understanding Child Custody in Kenya

Nature of Child Custody

A person may have legal or actual custody of a child or both. Legal custody means the right to possess a child conferred by a custody order awarded by the court. Actual or physical custody refers to the actual possession of a child, whether or not actual possession of the child is shared with other people.

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
  8. Etc

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.

Court Practice in Awarding Custody to Mothers

The tendency of the legal system is to grant primary physical custody to the mother in the case of young children as it has been deemed that mothers are well suited to cater to the basic needs of infants and young children. A mother would likely lose custody of a child in a scenario where she is clearly shown to be an unfit or horrible mother.

Child Custody for Fathers

Fathers have the right to apply for custody of a child. The court may award sole custody to the father depending on the manifest unfitness of the mother. The court will determine the degree of access of the father in instances where physical custody is awarded to the mother.  In other instances, where the court is satisfied, it will grant joint custody of the child to be shared by both parents.

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.

Losing Custody of a Child

A mother is often granted physical custody of young children. A mother would lose full custody usually in dire circumstances such as where the mother is shown to be a manifestly unfit parent e.g. abusive or a drug user whose ability to take care of the child is manifestly impaired.

Custody Paperwork

A child custody suit is a suit initiated like any other court suits depending on the type of orders sought. The parent seeking custody will file a suit in the appropriate court ordinarily the Children’s Court. The matter will go to hearing and a report by the Children’s Officer will be relied on in determining custody. A party may apply for sole or joint custody and may also apply for physical custody depending on their wishes.

The provision of general information herein does not constitute an advocate-client relationship with any reader. All information, content, and material in this article are for general informational purposes only. Readers of this article should get in touch with us/a qualified advocate to obtain legal advice with respect to any particular legal matter.


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