Understanding Child Custody Laws and Parental Rights in Kenya
INTRODUCTION
Child Custody is the legal responsibility that a parent(s) or guardian(s) has over a child, to ensure that they provide basic needs of the child and ensure that they protect and uphold the rights of the child. In Kenya both the mother and the father of a child have equal rights to a child. The family law in Kenya recognizes the critical role that both parents play in the growth and development of a child.
The issue of custody disputes normally arises in different circumstances including when there is parental separation or a divorce. It is key to note that when there is a dispute concerning the custody of a child it is only a court of law that can grant custody to any party in dispute. When granting custody the court looks at what is the best interest of the child not what the children want or what the parents want, it is what will enable the child to grow and develop as a responsible and productive member of the community. The guiding laws in matters custody of children are the constitution and the Children Act of 2022.
Who Can Have Child Custody in Kenya?
The Children’s Act of 2022 puts the threshold of custody of a child to be the best interest of the child. This gives the court discretion to make determinations as to the custody of a child guided by the provision of the act. This position was as a result of the changing times and judicial precedence such as that of Justice Joel Ngugi where he delivered a ruling that allowed for the possibility of fathers being awarded custody of young children. In his decision, Justice Ngugi argued that the existing law might not always serve the best interests of children. Historically, mothers have been granted custody of children under 10, but Judge Ngugi’s ruling shifted this tradition by awarding custody to a father for his children aged eight and fifteen.
Types of Child custody in Kenya
Legal Child custody– This type of custody grants a parent or parents the ability to make major decisions concerning the life of the child. This are things to do with medication, school and religion. This custody has must been given on a 50-50 basis between parents. For a court to make a decision contrary there has to be overwhelming evidence to show the inability of a party to take care of the child.
Actual Child custody – This pertains the living statures of a child. Which parent is the child staying with?
Ways in which custody is given by the court.
- Joint custody – Here an agreement is entered to share the time with a child. This custody can be used in in legal custody where both parents have equal rights over the child that is 50 – 50 , and in actual custody where one parent may have the child for 3 days in a week then the other party has the child for the other 4 days of the week.
- Sole with access custody – This type of custody gives custody of a child to one parent and the other parent is given visitation rights. Here the child lives with one parent full time and the other parent is given visitation, where they get to visit the child at allocated dates and time. This custody however grants equal legal rights to the parents.
- Sole custody – This custody grants one parent custody of the child, both actual custody and legal custody, and to the other visitation rights. Here there is no shared legal custody. This custody is granted where a parent is of unsound mind or is unfit to take care of a child.
- Custody arrangement under parental responsibility – This type of custody is entered to by the parents, it is where the parents enter in to an agreement as to the custody of the child outside court and come to the court asking for it to adopt the agreement as an order of the court.
PREREQUISITES OF CHILD CUSTODY IN KENYA
When making a determination on custody of a child the court has to put the best interest of the child first. There for the court looks for the following when making a determination:
- The living area of the parent – is it conducive for the up brining of a child
- The interest of the party to have custody – the court has to look at the motivation as to a party to want custody or lack there off.
- Wishes of the child – which parent the child prefers to stay with and the reasons for it.
- Religious persuasion of the child
- View of the other children of the family if there are any.
- Wishes of the parents.
- Age of the child.
- Relationship between the child and the parents.
By balancing these elements, the court aims to ensure that the child’s physical, emotional, and developmental needs are met in the most supportive and nurturing environment possible.
CONCLUSION
In conclusion, the determination of parental custody is a complex and nuanced process guided primarily by the principle of the child’s best interest. The various types of custody—joint, sole with access, sole custody, and custody arrangements under parental responsibility—each serve different needs and situations, reflecting the evolving understanding of familial dynamics and child development.
Ultimately, the legal framework and judicial decisions in Kenya reflect a commitment to adapting to changing societal norms and ensuring that custody arrangements are tailored to foster the growth and stability of the child. This approach not only honors the rights of both parents but, more importantly, prioritizes the child’s overall well-being and future prospects.
Disclaimer:
“The information provided in this article is intended for general legal advice and does not constitute legal advice for any specific transaction or case. Since each transaction presents a unique legal context, it is advisable to retain a legal adviser for specific transactions.”
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