Understanding Child Custody and Maintenance in Kenya; A Comprehensive Guide to Legal Guardianship and Child Support
In simple terms 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;
Maintenance
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.
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.
In the event of any inquiries or concerns , our team at MMS Advocates stands ready to provide expert legal guidance and support. You can reach us at our office located at Lower Duplex Apartments, LOWER HILL ROAD, or conveniently contact us via email at info@mmsadvocates.co.ke.
Date: Author: Matano Mary Ndzikwa