Securing Child Custody and Maintenance in Kenya

The guiding legislation with respect to matters pertaining children in Kenya is the Children Act No. 29 of 2022.

Who is a Child?

A person who has not yet attained the age of eighteen is referred to as a child under Section 2 of the Children Act.

Child Custody

Child custody means lawful custody, whether by operation of law, written agreement or order of a court of competent jurisdiction.

Child custody is categorized into two;

I. Actual Custody

This is synonymous with care and control of the child. It is the actual possession of the child whether or not the possession is shared with the other parent or person. Thus, whoever the court gives actual custody of the child is the person the child will live with.

II. Legal Custody

"Legal custody" refers to the conferral of parental rights and obligations to a person who has lawful custody of a child for a certain amount of time pursuant to an order of a Court of competent jurisdiction;

A Children's Court may grant custody of a child to any of the following persons upon application;

i. A parent

ii. A guardian

iii. any person who applies with the permission of a child's parent or guardian and has had actual custody of the child for three years before the application, unless the Court is persuaded on evidence that a shorter time is sufficient to warrant an order issued in consideration of the application

iv. any person who, while not falling within paragraphs (i), (ii) or (iii), can show cause, having regard to section 101, why an order should be made awarding the person custody of the child

Consideration For the Court in Determining a Custody application

The best interest principle and the following factors influence the court in determining whether or not to award custody orders;

a) The conduct and wishes of the parent or guardian of the child;

b) The child’s best interest.

c) The ascertainable wishes of the relatives of the child;

d) The child's discernible wishes, taking into consideration the child's evolving capacity;

e) If the child has been harmed or is likely to be harmed if the order is not made;

f) The circumstances of any sibling of the child in question, as well as any other children in the household, if any;

g) If a care order, supervision order, personal protection order, or exclusion order has been made for the child in question, and whether such orders are still in effect;

h) The child's religious persuasion;

i) The customs of the community to which the child belongs

The court takes into account all of the foregoing, as well as the report of a Children's Officer, who offers a recommendation on whether the parents should have shared custody or sole custody.

Joint Custody

Joint custody is where both parents are awarded custody of a child and are therefore jointly responsible for the child.

Child Maintenance in Kenya

Child maintenance simply refers to a parent's, guardian's, or custodian's responsibility to provide for a child's basic requirements (food, clothes, shelter, education, and medical bills).

A child maintenance order on the other hand is a court order requiring a specific person to make such monthly or lump sum payment for the child's maintenance on such terms as the Court deems appropriate;

It is vital to remember that Article 53 of Kenya's 2010 constitution states that both parents of a child, whether married or not, have equal responsibility to provide for the child.

Who May Seek Child Support/Maintenance?

According to section 111 of the Childrens Act any of the following persons can apply to court to make a maintenance order or to determine any issue with respect to maintenance of a child;

a. A parent

b. A guardian

c. A custodian of the child.

Can a person above the age of eighteen years apply for a maintenance order to be granted in their favor?

A person over the age of eighteen, or the guardian of a person over the age of eighteen, may, with the Court's consent, apply to the Court for a maintenance order to be granted in his favor in any of the following circumstances:

i. the person is or will be involved in education and training that will last beyond the individual's eighteenth birthday;

ii. The individual has a disability and will require specialized care beyond the age of eighteen.

iii. the person is suffering from an illness or ailment that would necessitate medical treatment beyond the age of eighteen; or

iv. other special circumstances exist that would warrant the making of the order.

Finally, the best interest of the child is the driving consideration in making either a custody or support order. When parents consider this, it lessens the possibility of lengthy litigation in court over child maintenance and custody issues. Child custody and maintenance agreements can be drafted for parents to specify the parameters of their co-parenting in the best interests of the child.