Section 81 (1) of the Children Act define custody with respect to a child to mean so much of the parental rights and duties as relate to the possession of the child. The custody order is often given by a court where the couple fails to agree on custody. Custody can be given to a parent of the child(ren), a guardian or any other person who applies for custody of the child but has actual custody for three months before making the application and has the permission of the parent or the guardian and any other person who can show a reasonable cause why custody should be bestowed upon him/her.
Matters of child(ren) custody can be complicated and when dealing with such cases, courts do focus on the best interest of the child. Parent may agree on custody of the children at the time of separation. If this is the case, it is important for the couple to ensure that their agreement is properly documented in a legally binding separation agreement. Parent can agree on joint custody, but there are times where parent may want sole custody of children, for example, where a parent has never been involved in a child’s life, is unable to parent, or has moved out of the country. If they fail to reach to an amicable solution, court will determine the suitable parent to give the custody.
In doing this, court has to interrogate the circumstances around the case so as to establish whether the child has suffered any harm or is likely to suffer any harm if the custody order is not made. Both parents have equal rights to apply to the court for a custody of their child(ren) but the court is guided by the following principles set under S. 83(1) of the Children Act (2006) among others which include; wishes of the child, wishes of the parents, guardians, foster parents or any other person who have custody of the child; cultural and religious background of the child, best interest of the child, parent-child relationship bond, parenting abilities of each individual, each parent mental, physical and emotional health, available support systems of each parent, etc.
Custody of Minors: children of tender years are kept under custody of their mothers unless there is a sufficient evidence to discredit the mother. The Subordinate Courts (Separation and Maintenance) Act Cap 153, enables a woman to seek custody for a child below 16 years. Article 53 (2) of the Constitution states that the welfare of the child is of paramount consideration in every matter and thus, court should consider which parent will be able to provide the best shelter, health, education and upbringing. In Karanu vs Karanu (1975) E.A 18, it was held that the first guiding principle provides that whenever the state, a court, a local authority or any person determines any question with respect to upbringing of the child, the child’s welfare shall be the paramount consideration and that is the position of the law.
In most cases court normally awards custody to the mother for she is considered best able to take care of very young children for they know their interests and needs. Where custody is bestowed on the mother, she is entitled to maintenance from the father until the child attains the age of majority.
Children Act Cap 141 of 20091
The Constitution of Kenya 2010
Karanu vs. Karanu (1975) E.A 18
Subordinate Courts (Separation and Maintenance) Act Cap 153