The question of Child custody is indeed an emotive issue because when the relationship between the parents has broken down and do not agree as to who will stay with the child, the resultant dispute is a child custody dispute. Issues involving child custody will normally also attract resultant questions with regard to who maintenance of children and child support. Reading through this article will help the reader understand Child custody distinctively from child support and the law applicable in the Kenyan context.
Child Custody is defined under Section 81 of the Children’s Act CAP 8 of 2001 Laws of Kenya as so much of the parental rights and duties as relate to the possession of the child. Furthermore, actual possession of a child, whether or not that possession is shared with one or more persons;
Child custody can be in terms of;
- Legal Custody
- Actual Custody
Legal Custody refers to rights and responsibilities that are conferred on by a custody order. These include the responsibility to maintain a child. It is only a parent who has been given legal custody of a child, that is liable to pay child maintenance. This is the reason why most court orders in matters involving children will first grant joint legal custody before proceeding to deal with actual custody of the child and maintenance.
Actual custody: – Actual custody of a child is synonymous with care and control of a child. It is the actual possession of a child whether or not the possession is shared with the other parent or any other person. Thus whoever the court gives actual custody of the child, is the person who will live with the child.
The court is always guided by the best interest of a child while making a determination on which parent to grant actual custody. Under this principle, case law is settled that a child of tender years, i.e. a child under the age of 10, is at first instance to be given to the mother, unless it can be proven that the mother is unable to take care of the child, or is even a threat to the child.
However, Section 83 of the Children’s Act sets out the following principles guiding the court in making a custody order. The court must consider the following:
- The conduct and wishes of the parent or guardian of the child
- The ascertainable wishes of the relatives of the child
- The ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his/her home in the last 3 years before the application to the court.
- The ascertainable wishes of the child.
- Whether the child has suffered any harm, or is likely to suffer any harm if the order is not made,
- The customs of the community to which the child belongs.
- The religious persuasions of the child
- Whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether or not those orders remain in force.
- The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
- The best interest of the child.
Once the court considers all the above, it will then proceeds to make a custody order. Many times a court is guided by official inquiry reports made by Child Services, who then decide whether or not to recommend either parent to have custody of their child.
Child maintenance on the other hand refers to the duties of parents to provide for the basic needs of the child. Section 23 of the Children’s Act lists the basic needs as :
- Food
- Shelter
- Clothing
- Education
- Medical provision
Article 53 (1)(e) of the Constitution provides that a child has the right to equal responsibility from both parents to maintain the child. On this basis, the Children’s Court will take into account the above needs of the child and then split the needs equally between the parents by the consequent making of a maintenance order.
Under Section 76 (3)(f) of the Children’s Act, the court is mandated to consider the financial ability of each parent to maintain the child. To this end, courts usually ask both parents to swear an affidavit of means which shows how much the parent earns in a month, vis a vis how much the parent spends.
Where either parent violates a maintenance order, it is treated as contempt of court, and the violating parent risks jail term on the same.
Conclusion
In conclusion, the guiding principle behind the making of either a custody or maintenance order is the best interest of the child. Once parents take this into account, it redudes the potential of lengthy litigation in court on matters involving child support and custody.
Authors:
Ms. Faith Gituma, a Legal Assistant/Trainee with the Firm and Mr. SM Kotonya, Partner and Head of the Litigation/Dispute Resolution Department.
This note does not constitute legal advice neither is it a Legal Opinion. For more information on family disputes or any further queries on children’s matters, email us on info@kn-partners.com or telephone us on +254 20 2000431/+254717554430