When dealing with Child Custody in Kenya our courts focus on one thing: The best interest of the children.
In some situations the decision of child custody can be amicably decided by parents at the time of separation. If this is the case, then it is important that the couple ensure their agreements are properly documented in a legally binding separation agreement.
In many cases the parents agree on joint custody. However, there are times where a 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 where a parent must leave the country permanently. In these cases it may make sense for one parent to have sole custody. The many different types of custody are explained in greater detail further down this page.
If an amicable agreement is not possible then deciding who will get custody and what type it will be, gets determined by the courts. This decision is never made lightly and divorce law sets out some basic principles for a judge to follow when making this important decision.
When determining child custody in Kenya a judge will consider items such as:
- First and foremost the best interest of the children.
- The parent-child relationship and bonding.
- Parenting abilities of each individual.
- Each parents mental, physical and emotional health.
- The parents and the children’s schedules.
- Available support systems of each parent (for example, help and involvement of grandparents or other close relatives).
- Sibling issues. Generally, brothers and sisters will be kept together, but under some circumstances it may be necessary to consider separating them.
- Care arrangements before the separation. Who was the primary care giver?
- The child’s wishes.
Understanding Child Custody:
Many people are confused as to what exactly child custody means as it is also frequently used to indicate a child’s “residence”.“Custody” under Kenya laws means decision making ability.
If you have custody of your children, then you are legally entitled to make all the important decisions regarding your children’s lives. These are decisions about education, religion, medical treatment, etc. For example, while parents may have “joint custody” (joint decision making ability) the children may actually reside primarily with one parent for most of the time and a child’s residence is determinative of who will be the Payer or Recipient, of child support.
Types of Child Custody in Kenya under Kenya laws:
- Sole Custody – This is when one parent has custody of the children. In this case, the child always resides permanently with the parent having sole custody and the other parent may have access visits.
- Joint Custody – This is where both parents have custody. This is also known as joint legal custody. Courts will normally only awards this type of custody to parents who are able to cooperate on parenting matters. While parents may have joint custody, the residency/access arrangements for the children may vary widely.
- Shared Custody – This is when both parents have joint custody of the children, and both parents spend at least 40% of the time with their children. This is also known as joint physical custody.
- Split Custody – This is when one parent has custody of some of the children, and the other parent has custody of the remaining children. Courts try to never split up up younger children from their siblings. However, older siblings often choose to live with different parents.