Understanding Child Custody and Maintenance in Kenya
A Comprehensive Guide to Legal Guardianship and Child Support
Child custody and maintenance in Kenya are critical aspects of family law governed by a combination of statutes such as the Children Act, the Constitution of Kenya, and precedents set by case law. Here’s a comprehensive guide to understanding child custody and maintenance in the Kenyan legal system:
- Legal Framework for Child Custody and Maintenance in Kenya
a) The Children Act (2022)
The Children Act is the primary legislation that governs matters concerning children, including custody, maintenance, guardianship, and child welfare. Under this law:
- Best Interests of the Child: The child’s welfare is the primary consideration in custody and maintenance cases.
- Parental Responsibility: Both parents have equal parental responsibility regardless of marital status, unless a court decides otherwise.
b) The Constitution of Kenya (2010)
- Article 53: Emphasizes that every child has the right to parental care and protection, whether their parents are married or not.
- Equal Parental Responsibility: Both the mother and father have equal responsibility towards their child.
- Child Custody in Kenya
Child custody refers to the legal guardianship of a child under the age of 18, which aims to uphold the best interests of the child above all else. The Children’s Act gives reference to article 53 of the Constitution of Kenya which is majorly on the rights of a child. The legal presumption is that when child is of tender age custody belongs to the mother, however, child custody can be categorized into two main types:
- Physical Custody: This determines with whom the child will live. The court might grant sole physical custody to one parent, or it might establish a shared or joint physical custody arrangement, where the child spends significant periods with both parents.
- Legal Custody: This gives a parent or guardian the right to make significant decisions about the child’s life, including education, health care, religion, and general upbringing. Similar to physical custody, legal custody can be awarded to one parent (sole legal custody) or both parents (joint legal custody).
When applying a custody order you approach a children’s court via a plaint.
Principle applied when making a custody order
In deciding whether or not the custody order should be in favor of the applicant the shall have to regard to:
- 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 the child taking into account the child’s evolving capacity;
- 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 persuasion of the child;
- whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force;
- Child Maintenance (Child Support)
Maintenance order simply means an order issued by a court directing a specified person to make periodic or lump sum payment for the maintenance of the child on such terms as the Court may consider appropriate.
Unless the court directs otherwise the following presumptions will apply in regard to the maintenance of the child:
- It will be a joint responsibility for the parents to maintain the child whether or not they are married to each other.
- In instances where two or more guidance have been appointed it is their responsibility to maintain the child either jointly with the parent or not.
Legal Provisions for Child Maintenance
- Section 94 of the Children Act: Establishes that both parents are required to maintain the child regardless of whether they are married or not.
- Duration of Maintenance: Maintenance is typically required until the child turns 18 years old. However, if the child is in school or has special needs, maintenance may continue past 18.
- Shared Responsibility: Both parents are legally obligated to contribute to the child’s upkeep in proportion to their income or financial capacity.
Factors Considered in Maintenance Orders
Courts look into several factors when determining the amount of maintenance:
- Income of both parents: Courts examine the earning potential and financial status of both parents.
- Needs of the Child: The child’s education, healthcare, and general well-being are considered.
- Standard of Living: Courts try to maintain the child’s standard of living before separation or divorce.
Parents can agree on the amount and terms of maintenance. If no agreement is reached, the court steps in to assess and order the appropriate amount.
Power to make maintenance order
In matters relating to the maintenance of the child, a parent, guardian, or an authorized officer, may apply to the Court to determine any matter relating to the maintenance of the child and to make a maintenance order provided that on the making, varying, or discharging of a residence, guardianship or custody order, the Court may make a maintenance order for a child notwithstanding the fact that no application has been made to the Court in that regard.
A person or the guardian of a person who has attained the age of eighteen years may, with the leave of the Court, apply to the Court for a maintenance order to be made in his favor in circumstances that the person is or will be involved in the education and training which will extend beyond the person’s eighteenth birthday, the person has a disability and requires specialized care which will extend beyond the person’s eighteenth birthday, the person is suffering from an illness or ailment and will require medical care which will extend beyond the person’s eighteenth birthday or other special circumstances exist that would warrant the making of the order.
Maintenance during matrimonial proceedings
The Court may make a maintenance order, whether or not proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings have been filed by a parent of a child, or during proceedings or after a final decree is made in such proceedings: Provided that, once the proceedings for the maintenance of a child have commenced under this or any other Act, no subsequent or other proceedings with respect to such maintenance may be commenced under any other Act without leave of the Court. The Financial provision of the child the Court may order the person against whom a maintenance order is made to make a financial provision for the child by either periodic payments or such lump sum payment, as the Court shall deem fit
Duration of financial provisions
A maintenance order requiring financial provision to be made through periodic payments shall commence on the date of the application, or on such later date as the Court may direct and it shall remain in force until the child’s eighteenth birthday.
- Guardianship
Guardianship differs from custody as it grants an individual or couple the legal right to care for a child whose parents are either deceased, incapacitated, or unable to fulfill their parental duties.
Types of Guardianship
- Testamentary Guardianship: Appointed through a parent’s will.
- Court-Appointed Guardianship: A guardian appointed by the court when the child’s welfare is at risk, and there are no parents or other legal guardians available.
- Guardianship by Agreement: When both parents agree to appoint a guardian in the case of their inability to care for the child.
- Child Custody and Maintenance Disputes
In situations where custody or maintenance is disputed, the following options are available:
- Filing a Case in the Children’s Court: This court has the mandate to handle child-related cases, including custody and maintenance issues.
- Mediation and Negotiation: Sometimes, alternative dispute resolution methods like mediation may resolve custody or maintenance issues out of court.
- Enforcement of Court Orders: If a parent refuses to comply with a maintenance or custody order, the other parent may apply for enforcement of the court order, including penalties for non-compliance.
- Modifications of Custody or Maintenance Orders
- Change in Circumstances: If there is a significant change in circumstances (such as a parent’s financial status or health), either party can apply for a modification of custody or maintenance terms.
- Relocation: If a parent wishes to relocate with the child, they must seek the court’s permission, especially if it affects visitation rights or the welfare of the child.
- Conclusion
Child custody and maintenance laws in Kenya are designed to prioritize the welfare of the child. Courts emphasize the “best interests of the child” in determining who should get custody, while both parents share financial responsibility for child maintenance. Guardianship steps in when parents are not available or capable of taking care of the child, ensuring the child’s continuous care and protection.
Understanding the nuances of these laws and the legal process surrounding child custody and maintenance can help parents or guardians navigate family disputes more effectively.
We hope this information has been helpful. This content is however not exhaustive since there is much more to explore beyond what is written. If you need assistance you can contact us through our email on [email protected] or you can call/Whatsapp us through 0735 094112.
