Does Divorce affect the rights of children of divorced parents?

Divorce by itself does not diminish the rights of children, however the circumstances of life after divorce can affect children, for instance sometimes divorced parents may withdraw financial support of the children to retaliate against the other parent or divorced parents once they remarry, the new partner may take on a parenting role of the child of the divorcees. Nevertheless, a parent of a child of divorce can go to court to reinforce and protect the rights of their child in the event of divorce.

Can I ask the divorce court for child custody?

No, the divorce court which is usually the magistrate court exercises its jurisdiction in respect of divorce and the special children’s court determines issues of custody and child maintenance with respect to divorced or divorcing parents

Do divorce proceedings affect child custody proceedings?

These two proceedings take place in different courts (divorce is done in the magistrate’s courts and child custody proceedings are done in children’s courts) and are independent of each other, nevertheless evidence from one proceeding may be used in another and vice versa. Divorce and child custody cases are different types of family law proceedings.

Who gets the child in the event of divorce?

The basic guide applied by courts in Kenya in matters of child custody is that the mother usually gets primary physical custody of children below the age of 10 unless she is shown to be unfit; and the father gets access. Both parents usually share legal custody unless either is shown to be unfit. For children above 10 years, custody and access are usually jointly shared.

What rights do divorcing fathers have?

Fathers have equal rights of custody over children and have equal rights as mothers to sue for custody; while legal custody is likely to be granted equally, the age of the child while determine who will get primary physical custody.

Can a divorced parent relocate with children?

Divorced parents can agree on child custody and residence of the child and decide if they allow the child to relocate with one divorced parent out of Kenya.. Note that it is harder in a practical sense to pursue custody orders abroad once a child has left the Kenyan jurisdiction before issues of custody and residence are settled.

Where someone is a legal guardian, there are regulations on guardianship under the Children Act 2022 that require court consent prior to relocating with a child over whom guardianship is established

Can divorced parents enter an agreement on child custody, access and financial maintenance of the children?

Yes a parental responsibility agreement is the appropriate document to be drafted, signed and filed in court.

How is custody of children decided where parents separate or divorce?

Custody can be determined in 2 ways:

1. The amicable way is that parents agree between themselves on custody, access and maintenance and this is written up in a legal document called a parental responsibility agreement, this is signed by both parents and filed in court and adopted as a court order
2. The contested way, where custody is litigated in the children’s court, where each divorced parent seeks their desired order form the children’s court; i.e. the divorces sue and/or countersue for custody and child support

Are children taken into account in dividing matrimonial property?

Yes, children ought to be considered in the division of matrimonial property, for instance children have a right to decent shelter and where matrimonial property consists of a home, the party retaining primary physical custody of minors/young children can assert this as a factor with respect to the issue of splitting an asset such as a matrimonial home. This is also a factor that courts may consider in a matrimonial property cause that is in court after divorce. (A matrimonial property cause is a case on division of matrimonial property between parties who have already divorced.) Thus custody of minors is a relevant factor taken into account in deciding how the matrimonial home is allocated when dividing matrimonial assets.