A common question we get from our clients is whether adultery provides grounds for child custody claims. Here is what you should know.
When granting child custody, adultery is not considered under Kenya’s Children’s Act, 2022. The role of the courts is to prioritize the welfare of the children, and only under circumstances where there is evidence that the mother of the child is not fit to raise the child will the father gain full custody.
After irreparable damage occurs in a relationship, and a couple has to split, whether married or not, the welfare of any children involved becomes an essential consideration.
Child custody, defined as the legal and practical relationship between a parent and a child, encompasses various aspects of the child’s welfare.
Some considerations include parental rights and responsibilities concerning their children, including decisions about the child’s welfare after a divorce, such as their upbringing, education, healthcare, and general well-being.
Much like the laws in many other countries, including the US, the United Kingdom, and South Africa, Kenyan Laws prioritize the children’s welfare despite the parents’ disagreements.
Shifting the focus to parental responsibilities, it’s crucial to understand that parents in Kenya are legally obligated to provide their children with basic needs, including education, even in the event of disagreements between the parents. Typically, the courts will strive to split responsibilities equally and grant both parents access to the child.
In other instances, the parents can settle matters out of court through a mediator and come to a parenting agreement that best fits them.
For legal help in a situation where your spouse is denying you access to your child, or further consultation, contact us today by calling +254 799 180 755, emailing [email protected], or sending us a message via our Free Inquiry Form.
Why Courts Do Not Consider Adultery in Child Custody Claims
The Divorce Court typically handles marriage disputes in Kenya, while the Children’s Court handles Child Custody cases. This builds the foundation for how differently the matters are decided upon by the courts, children’s officers, or anyone mediating the dispute.
The Children’s Act clearly states that both parents share parental responsibility, which is the duties, rights, powers, responsibility, and authority concerning the child or the child’s property.
The crucial thing in child custody cases is to ensure that the child is catered for and parents provide for the child the following:
- Adequate food
- Shelter
- Clothing
- Medical care
- Education
- Guidance
In addition to these, the parents have a duty to protect the child from neglect, discrimination, and abuse, among other provisions.
As a result, the court’s priority is to see how best the child can get these provisions and the adulterous activity of one partner does not hinder the ability to provide.
Historically, some jurisdictions deemed mothers unfit to raise a child due to promiscuity, but in today’s context, this is not the case in countries subscribing to common law.
Can a Father be Granted Full Custody of a Child if His Wife is Cheating?
Under Kenyan Laws, there are many possibilities and different outcomes in cases. However, the results in child custody battles can be relatively predictable depending on the circumstances.
Fathers with unfaithful wives or ex-wives often expect the Children’s Court to side with them and grant them full custody. However, that is not likely to be the outcome as the reasons for separation between you and your spouse are not considered to be the fault or concern of the child.
So, if you wonder whether you can get full custody of your kids due to your partner’s adultery, you should know that in all circumstances, Children’s Courts consider the child to be safer in their mother’s care, and the differences between the parents do not influence the court’s decision.
The Children’s Court in Kenya will not consider your spouse’s extramarital affair as a reason to give you full custody of a child.
For most parents, reaching an amicable solution through mediation (a neutral third party facilitates communication and coming to a mutual agreement) and seeking legal services to come up with a Parental Responsibility Agreement serves as the most effective solution in child custody — A Parental Responsibility Agreement (PRA) is a legal document that allows parents who are not living together to share parental responsibility for their child or children.
Overview
In conclusion, infidelity in a marriage may give grounds for divorce, but it holds no weight when deciding the fate of children as far as child custody is concerned.
When dealing with a child custody battle, our lawyers recommend always thinking about what is best for your children regardless of your personal preferences or disagreements between you and your partner.
This is why the law in Kenya mandates equal responsibility for both parents, reinforcing the principle that no parent is exempt from caring for the child and no parent holds the power to deny their spouse access to their child.
Speak to a Child Custody Lawyer in Nairobi
For help gaining child custody or further consultation, contact us today by calling +254 799 180 755, emailing [email protected], or sending us a message via our Free Inquiry Form.
