A parental responsibility agreement is an agreement containing the entirety of terms on raising a child that is entered into between parents of a child or children. The agreement must be signed and filed in court to ensure it is enforceable. Parental Responsibility Agreements are common between parents who are not a couple or are separated or divorced.

What should a parental responsibility agreement contain?

This agreement is a legal document and is drafted with the proper format and the signature of the parents is witnessed by advocates.

Useful clauses include:

Custody

This is a stipulation on how custody is shared between parents. Custody can be joint where it is shared equally between the parents; custody may be given to one parent. Also make sure to stipulate who shall have physical custody of the child

Access

Where physical custody is shared or given to one parent, the agreement should stipulate the terms for the non-custodial parent accessing the child for instance visits, spending holidays or weekends together, etc.

Child maintenance

This refers to the money to be spent on the upkeep of the child. The agreement should clearly stipulate how each parent is responsible for big expenses such as housing, school fees, medical insurance of the child. If one parent is contributing more, the amount should clearly be stipulated or the expenses said parent is paying for outlined.

Also set out which is the parent responsible for paying expenses such as clothing, entertainment, extracurricular activities, school books and supplies.

Religion and Culture

Kenya is a patrilineal culture meaning often, parents often default to the religion and culture of the father. However, the child’s religion and culture can be determined in the agreement to avoid disagreements on the culture and religion the child is raised in.

Dispute resolution

This is a very important clause that should be set out to provide for amicable resolution of conflicts before they escalate to more formal dispute resolution mechanisms such as court. Ideally, the parents should set out the clause to commit to informal mediation e.g. mediated by friends or family and upon failure of informal discussions with a view to settling, the agreement can outline that the aggrieved parent can seek audience before the children’s court or family court as the case may be.

Governing law

This clause is useful in many instances to guide courts locally or abroad when it comes to a dispute between the parents. This clause is drafted in the context of conflicting laws and conventions governing child custody in different jurisdictions and can serve to mitigate disputes regarding the applicable law in various scenarios.

Decision making

Numerous decisions to be made by the parents abound throughout the life of a child hence it is important to demarcate which parent is responsible for what decisions or whether decisions shall be mutually made. The advantage of setting out decision making terms regarding the life of the child is to avoid numerous disputes in decisions e.g.  parents can decide who is responsible for making decisions on where the child attends school, the religion and culture of the child, change of residence of the child etc.

Parents can also agree to make mutual decisions and should consider how amicable their relationship is or is likely to be in the future. Parents should consider whether disagreements on decisions will impact the best interests of the child

Best Interests of the Child

In matters concerning a child, Article 53(1) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. Section 8 of the Children Act, 2022 also provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Thus in drafting the agreement, the paramount consideration for each parent should be the welfare of the child and the wishes of the child can also be considered in drafting the agreement depending on the child’s age.

Filing the parental responsibility agreement in the children’s court

In Kenya, to make the parental responsibility agreement enforceable, it needs to be filed in court and adopted as an order of the court.

Amending the parental responsibility agreement

Once the agreement is filed in court and adopted as a court order, parties can first seek to amicably and mutually amend the agreement and file any amendment in court. If there is a dispute regarding amending the agreement, an application can be made to court regarding the said amendment and the court in making its decision, will be guided by whether the said amendment is in the child’s best interests.

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.