Introduction
With the rise in divorce cases and separation, child custody has been an ongoing issue due misunderstandings between parents. As a result, child custody has become a common issue that not everyone understands, making this article essential, as it discusses what it entails and the factors that courts consider when granting custody to end the never-ending debate on who should possess a child.
What is child custody?
Child custody is a legal term regarding children’s guardianship. It is a phrase that describes the relationship between a parent or guardian and a child. Child custody is a common word that is used in children’s courts. It is often used when a court is determining which parent, relative, or anyone with a legitimate interest in the child’s welfare should be granted physical and legal custody. There are two types of child custody; legal and actual custody.
Legal custody
Legal custody is the right to possess a child following a court order. This order gives a parent or guardian the right to make crucial decisions pertaining to the child’s well-being and upbringing. For a court to grant you legal custody of a child, some factors have to be highly considered; the child’s best interest, their age, their wishes, their siblings’ wishes and needs, and their parents’ wishes and fitness.
Actual custody
Actual custody is also known as physical custody. It refers to the physical possession of a child, regardless of whether or not the possession of the child is shared with other people. Actual custody happens in the absence of a court order.
Who can be granted child custody?
Both parents have the right to exercise parental care and responsibility over their children. Thus, they have equal rights and responsibilities toward their children. However, when a child custody case is brought forth, a competent court has to determine the case based on the factors mentioned above and grant legal custody to whomever it deems fit. In most cases, mothers often get legal custody of their children, especially infants. They are granted legal custody because of their children’s age and needs. In such instances, the court usually determines the degree of access of the father. In other cases, courts award legal custody to the father if the mother is proven to be unfit. All in all, a guardian, parent, or anyone with a legitimate interest in the welfare of the child may apply for a legal custody order in a children’s court. The applicant can either apply for joint custody, sole custody, or sole custody with access.
Joint custody
Joint custody is custody shared between parents with a determination on when each parent may have actual custody of the child. An example of joint custody is when both parents get three days with the child in a week. That means that if the judgment is delivered on Friday and the decree is supposed to be implemented from the next week on Monday, the mother will have the child from Monday to Wednesday and the father will take the child on Thursday and return them to the mother after three days which is on Saturday and the sequence continues.
Sole custody
Sole custody is when only one parent is granted custodial rights. In this case, only the parent granted custodial rights will decide on key issues related to the child’s upbringing. Sole custody is often granted to one parent when the other one is unfit to raise the child. Some of these factors that can make a parent unfit to raise a child include drug and substance abuse or addiction, psychiatric illness, child abuse, or evidence of a history of violence. When you have such characters, you are likely to lose legal and actual custody of your child regardless of whether you are the mother or father.
Sole custody with access
This is where custody is granted to one parent but the non-custodial parent has the right to visit the child without taking custodial possession. In such a case, one parent lives with the child and makes all decisions about the child’s upbringing. However, the non-custodial parent can visit the child from time to time.
Miscellaneous Civil Case No 58 of 1985 (OS): Child custody of two children was granted to the father because the mother’s house was not a suitable place for the children due to constant conflicts and also a lack of a source of income, considering that she also had other kids from her previous and current marriages. The court also found evidence that the mother was more interested in the amount of child maintenance she would be receiving from the children’s father. The applicant, who in this case was the mother, was ordered by the court to hand over the two children to the respondent, who was the father.
SMM v ANK [2022] eKLR: A joint legal custody was granted to both parents because there was no evidence that neither of the parents was unfit to raise the child and make decisions regarding their lives. The judge found no reason to restrict legal custody to one parent only
Revised laws and legal developments
The Children’s Act of 2001 provides that a child under the age of 10 should be given to the mother unless the mother is proven to be unfit. However, in a case that was decided on April 7th, 2022 by Justice Joel Ngugi, a ruling was made and it approved fathers to be granted custody of young children. In his ruling, he said that the law is not necessarily in the best interest of children. Mothers have always been granted legal custody of young children below the age of 10 for decades. The ruling made by Judge Joel Ngugi has changed that narrative because the father was granted legal custody of his two children aged eight and fifteen.
Other than that, there are new children reforms that were launched on 8th June 2022. The reforms aim to promote a shift from institutionalized care of children to family-based care. These care reforms ensure that children are brought up in families and communities. However, the reforms are not yet official since the government is still in the process of rolling them out.
Conclusion
Children are vulnerable beings who deserve a proper upbringing. As a result, courts are very keen on matters relating to child custody, and this explains why sometimes custody is granted to one parent or other relatives. However, parents can still create a custody arrangement under a parental responsibility agreement instead of relying fully on the court to decide how they will look after their children, considering that cases too long to be resolved due to the workload in courts. This agreement is often adopted as a court order that binds both parties who have equal rights toward the child. Parents and guardians should always ensure to prioritize their children’s best interests to safeguard their well-being.
For more insights pertaining to this matter, you can reach us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke.