In Kenya, a child is anyone under the age of 18 years. The mother and father of a child have a joint parental responsibility to care and provide for the child’s physical, emotional and financial needs. However, this does not always happen. Sometimes, parents separate – leaving children in uncertain parental arrangements. Other times, children are left without parents by reason of death or abandonment, thereby needing other people to care and provide for them. In such situations, matters of child custody and maintenance become critical.
What is Child Custody?
The law governing matters of custody and maintenance in Kenya is the Children Act (“the Act”).The Act defines custody as ‘the parental rights and duties relating to the possession of a child’.
There are two types of custody – actual custody and legal custody. Actual custody is the ordinary possession of a child, whether or not that possession is shared with another person. Legal custody refers to the parental rights and responsibilities that are conferred on a specific person(s) by a custody order obtained through a court process.
Who May Apply for Legal Custody?
An application for legal custody often comes about when there is dispute or uncertainty regarding the possession of a child. The Act provides that custody of a child may be granted to:
- a parent or guardian of the child;
- a person authorized by the child’s parent/guardian to seek custody and who has had actual custody of the child for 3 months prior to the application; and
- any other person who can show why they should have custody.
How is Legal Custody different from Parental Responsibility?
Custody focuses on the parental right of possession of the child. It does not extinguish the other parental responsibilities of the parent or guardian who does not have custody. As explained by the Court in ZWN v CMK (2018) eKLR, “any person who has parental responsibility for a child at any time shall not cease to have that responsibility”.
Section 23 of the Act defines parental responsibility to mean “all the duties, rights, powers and responsibilities which by law a parent has in relation to a child. It includes the right to give parental guidance as well as the right to seek custody. It also includes the duty to provide the child with adequate diet, shelter, clothing, medical care and education.
What Do Courts Rely on in Making Custody Orders?
In determining whether or not to grant custody, courts are mainly guided by:
- The conduct and wishes of the parent/guardian of the child;
- The wishes of any person who has had actual custody of the child and under whom the child has made his home in the last 3 years;
- Whether the child is likely to suffer harm if the order is not made;
- The wishes of the child; and
- The best interests of the child among others.
What is Maintenance?
Child maintenance simply refers to the duties of a parent, guardian or custodian to provide for a child’s basic needs (food, clothing, shelter, education and medical expenses).
Article 53(1) (e) of the Constitution of Kenyaprovides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.
Who Can Seek Maintenance of a Child?
Section 91 of the Act provides that a parent, guardian or custodian of a child may apply to court to determine any matter relating to the maintenance of the child. The court may then make a maintenance order that a specified person (father/mother/guardian) make such periodical or lump sum payments for the maintenance of the child.
While maintenance applications are commonly made by women, nothing precludes men from seeking child maintenance from their wives or former wives /partners. In MEK v GLM  eKLR, which involved a husband seeking maintenance from his wife, Justice Githinji stated that “the traditional gender role [of the man having to provide for his wife] has been superseded by the provisions of the Constitution and Marriage Act, 2014 and is therefore not a relevant factor in determining whether or not an order for maintenance should be made in favour of a husband”.
What do Courts Consider When Making Maintenance Orders?
In deciding child maintenance matters, courts make orders guided by the following general principles:
(a) Where the parents of the child are both living, the duty to maintain the child is the parents’ joint responsibility, even if only one parent has custody of the child;
(b) Where there are two or more guardians, the duty to maintain the child is the joint responsibility of all guardians;
(c) Where two or more custodians are appointed over a child, all custodians are jointly responsible for maintenance of the child; and
(d) Where a ‘residence order’ (a court order establishing where a child will live) is made in favour of more than one person, it is the duty of those persons to jointly maintain the child.
Conclusion and M&K Advisory
Every child has a right to parental care and protection whether they have biological parents or not. Understanding the law around custody and maintenance of children is critical as anyone may find themselves involved in these processes in one way or the other.