CHILD CUSTODY AND MAINTENANCE: A CASE OF TWO TALES AND THE LEGAL IMPERATIVES.

Child Custody and Maintenance
The legal staff at Action for Children in Conflict, Kenya seeks to handle mediation between separated parents for the benefit of the children sired within that union. In 3 out of 5 cases, both parties are willing to take part in the process with the best interests of the child influencing their commitment. However, in the remaining two cases, one party, and it is the man in 98% of the cases, will usually fail to honor the call for mediation.
The Kenyan legal system has witnessed quite a number of landmark rulings on family matters to do with custody and maintenance of children. In spite of this, lack of awareness and the fear of the stereotypical complex nature of the courts intimidate individuals who might wish to pursue the court process. This is no exception to Thika Town where most of the clients hail from. A recent survey of the education level for the clients indicates an average of Form Two high school dropouts. This, perhaps, explains the failure to seek the legal channel. Further and perhaps more worryingly is the patriarchal society that we live in, even if we fail to acknowledge the situation. The man will therefore resort to using threats and other blackmailing tactics in order to dissuade the mother of their child (ren) from taking further action.
Some of the considerations that the courts will consider as best interests of the child include:
• Wishes of the child (if old enough to capably express a reasonable preference);
• Mental and physical health of the parents;
• If a child has special needs, how does each parent take care of those needs;
• Religion and/or cultural considerations;
• Need for continuation of stable home environment;
• Other children whose custody is relevant to this child’s custody arrangement;
• Support and opportunity for interaction with members of extended family of either parent such as grandparents;
• Interaction and interrelationship with other members of household;
• Adjustment to school and community;
• Age and sex of child;
• Is there a pattern of domestic violence in the home; Parental use of excessive discipline or emotional abuse;
• Evidence of parental drug, alcohol or child/sex abuse.
It is the duty of both parents to mutually contribute towards the welfare of the child. It is even better if the mediation processes are fruitful. We however acknowledge that this cannot always be the case and therefore the need for the legal process. The court’s decision will be final and will analyze the circumstances in order to reach to a conclusion. The problem and major challenge still lies in trying to convince the separated couples to seek legal help in the event that mediation has failed. Both parties have the right to be heard and the responsibilities are to be borne by both in a manner that is fair and just irrespective of whether they cohabit together or not.