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Child custody and maintenance is primarily governed by the Children Act of 2022 (‘Act’) which regulates all matters concerning children, including their rights, parental responsibility, adoption, custody and maintenance.

Types of Child Custody

The Children Act defines two forms of custody;

Actual Custody - The physical possession, care and control over a child.

Legal Custody – The parental rights and responsibilities for a child granted to someone through a court order.

Who May Be Granted Child Custody?

The court may grant custody to;

• A parent
• A guardian
• A person who, with a parent’s or guardian’s consent, has cared for a child for at least three years before applying for custody, unless the court decides a shorter period is sufficient.
• Any other person who can show cause, why they should be awarded custody.

Factors Considered When Granting Custody

In deciding whether to grant a custody order, the court is guided by several principles including;

1. The conduct and wishes of the parent or guardian.
2. The wishes of the relatives of the child.
3. The wishes of the child taking into account the child’s evolving capacity.
4. Whether the child has suffered any harm or is likely to suffer any harm if the order is not made.
5. The customs of the child’s community.
6. The child’s religious background.
7. Whether the child is under a care, supervision, protection or exclusion order.
8. The circumstances of any sibling, or any other children of the home.
9. The best interest of the child.
10. The child’s physical, emotional and educational needs especially if they have a disability, chronic illness or are intersex, the ability of any person or institution to provide any special care or medical attention which may be required for the wellbeing of the child.
11. The likely effect on the child of any change in circumstances.
12. The ability of the parent, or any other person as may be relevant to provide and care for the child.

Rights of a Parent or Guardian Not Granted Custody

Where a custody order is granted to one parent or guardian, the court may still allow the other to share certain rights and responsibilities, except the right to actual possession of the child. These rights granted may include access to the child, as determined by the court.

Protection Against Unlawful Removal of a Child

If a parent or guardian has lived with a child for at least three years and applies for a custody order, no one can take the child away from their care without court approval.

Where a child is unlawfully taken away from a parent or guardian, the court can order their return. If the child has been taken outside Kenya, the court may issue a production order.

If one has reasonable grounds to believe someone intends to unlawfully remove a child from their custody, they can file an application to court for an order preventing the removal.

If the court believes a child is at a specific location, it can issue a search warrant allowing a police officer to find and return the child to the rightful parent or guardian.

Interim Custody Orders

The court has the power to grant interim custody orders for a maximum period of 12 months, which may be reviewed, suspended or varied as necessary.

Revocation of a Custody Order

A custody order can be revoked upon application by a party. However, before doing so, the court shall consider the merits of the issues raised. On revocation of the custody order, the court will specify who will have custody of the child going forward.

Conclusion

At BIK Advocates, webring extensive legal experience in handling family matters including child custody, maintenance, guardianship, and adoption. Our team has successfully represented clients, ensuring that the best interests of the child remain priority.

We welcome your feedback and inquiries and look forward to assisting you with your legal needs. For any questions, please reach out to us at info@bikadvocates.com

Disclaimer

This article is for informational purposes only and should not be construed as legal advice.