Child Custody in Kenya

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In Kenya, the rules about child custody in Kenya are found in the Children Act of 2022, which outlines the rights and responsibilities of parents, guardians, and the government in relation to children.

Issues of child custody often arise when parents separate or divorce. The law in Kenya recognizes that the child’s best interests are essential in any decision involving the child. 

When making a custody determination, the court will consider a range of factors, including the child’s age, health, emotional well-being, and the parent’s ability to provide for the child’s needs. In some cases, the child may be allowed to express their wishes regarding custody if they are old enough.

In this article, our lawyers explain all matters related to child custody in Kenya to help you understand the laws around child custody in Kenya.

For assistance with your child custody case or further consultation, contact us today by calling +254 710 761 001, emailing [email protected], or sending us a message via our Free Inquiry Form.

What is Child Custody?

Child custody is the legal relationship between a parent or guardian and a child. It refers to the parent’s right and responsibility to make decisions about the child’s upbringing, including where the child lives, who the child spends time with, and how the child is educated.

Types of Child Custody

There are two main kinds of child custody: 

  1. physical custody 
  2. legal custody

Physical custody refers to where the child will live and who they live with, while legal custody refers to the right to make important decisions about the child’s life, such as their education, healthcare, and religious upbringing.

Child custody arrangements can be further separated into the following:

  • Joint custody means that both parents have the right to make decisions about their child’s life.
  • Sole custody means that only one parent has the right to make decisions about their child’s life.
  • Sole custody with access means that one parent lives with the child and acts as the primary caregiver and decision-maker, while the other, who doesn’t have physical custody, keeps the right to see and visit the child periodically.
  • A custom custody arrangement where the parties, via a mediator or family lawyer, come up with a custom Parental Responsibility Agreement to suit them and how they want to share custody.

It is important to note that custody decisions can be modified if there is a significant change in circumstances affecting the child’s welfare.

Child Custody Laws in Kenya

In determining custody, courts consider the best interests of the child (any human being under the age of 18 years), which include the following:

  1. Adequate food
  2. Shelter
  3. Clothing
  4. Medical care
  5. Education 
  6. Guidance

The Children Act, 2022 instructs the courts to give custody based on available facts and evidence to ensure the best solution for the child’s quality of life and safety.

Certain issues and disagreements between the parents or the reasons for divorce do not determine who gets custody.

Factors Considered in Child Custody Cases

Several factors are taken into consideration when determining child custody. These factors include:

  1. The child’s age
  2. Best interests of the child
  3. The child’s preferences (if they are old enough to express them)
  4. The parent’s wishes
  5. Any existing court orders from the divorce
  6. Fitness of the parents (Whether the parents are able to take care of the child)
  7. The wishes of any existing siblings
  8. The parent’s capacity to provide for the child’s needs
  9. Each parent’s living situation and ability to provide a stable home environment for the child

Another factor that is considered is each parent’s living situation and their ability to provide a stable home environment for the child. This includes factors such as the parent’s behavioral conduct and housing situation to avoid exposing the child to a potentially harmful environment.

The court may also consider any history of abuse or neglect by either parent, as well as any criminal history. It is important to note that the focus is always on what is in the best interest of the child, and each case is evaluated on an individual basis.

Who Gets Child Custody in Kenya?

If both parents are deemed fit to have custody, the court typically grants joint custody, where both parents are responsible for raising the child and making important decisions regarding the child’s welfare.

The law governing child custody in Kenya recognizes that both parents have equal rights to custody, but the court may award custody to one parent if the other parent is found to be unfit or unable to provide a safe and stable environment for the child.

For children under 10 years old, their mothers get physical custody unless the mother is proven unfit to raise the child due to issues like abuse, neglect, incurable mental illness, or drug abuse.

The Child Custody Process in Kenya

Child custody decisions in Kenya involve 5 key steps as follows:

1. File a child custody petition

Start by asking the High Court Family Division for child custody or a custody change.

2. Mediation

The court typically suggests talking it out in mediation to try and find a mutually beneficial solution before heading to court.

Mediation helps find solutions without going through a formal legal process and allows the parties to reach a favorable solution quickly.

3. Child custody hearing

In cases where parents cannot agree on custody arrangements, the court may intervene and make a decision based on the evidence presented by the parents and their lawyers to support the child custody claim. 

4. Custody check

The court might ask for a custody evaluation to understand your abilities as a parent and the child’s needs.

5. Final decision by the court

Based on what’s best for the child, the court makes the final call after considering all the information, facts, and arguments presented during the child custody hearing.

Get Legal Help from a Child Custody Lawyer in Kenya

If you need legal help in a child custody case in Kenya, contact us by emailing [email protected], calling +254 710 761 001, or using our free inquiry form to schedule a consultation with one of our experienced lawyers. 

For further legal help and consultation, don't hesitate to contact Kraido Advocates by calling +254 799 180 755 or via our FREE INQUIRY FORM.
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