RELATIONSHIP TIPS: What the Law says about child custody

Divorce cases tend to be murky and difficult to navigate. Where there are children, child custody and maintenance is one of the most critical that divorcing or separated parents have to face. PHOTO| FILE

What you need to know:

  • According to the Children’s Act of 2001, in cases where an unwedded couple has a child and are no longer living together, the mother shall have parental responsibility from onset.
  • However, the father can still acquire parental responsibility for the child.
  • If you had a child while still single and later got married to each other, you will both be the child’s custodians.

Divorce cases tend to be murky and difficult to navigate. Where there are children, child custody and maintenance is one of the most critical that divorcing or separated parents have to face. Many parents walk into negotiations unaware of what the Court might consider before giving custody to any of the two parents involved. According to Murigi Kamande, an advocate of the High Court, the law on how custody shall be determined is contained in the Children’s Act of 2001. Let’s take a look at this law.

WHO GETS CUSTODY: It is the mother who is expected to get the child’s full custody until she is aged 18 years. However, according to Kenya Law Resource Centre, a legal journal, custody can be given to any of the child’s parents, guardian, or any person who applies for it with the consent of a parent or guardian. It can be given to someone who has had actual custody of the child for a period of at least three years before the application for official custody.

UNWEDDED PARENTS: According to the Children’s Act of 2001, in cases where an unwedded couple has a child and are no longer living together, the mother shall have parental responsibility from onset. However, the father can still acquire parental responsibility for the child. If you had a child while still single and later got married to each other, you will both be the child’s custodians.

FINANCIAL SUPPORT: While the court may order the child’s parent to provide for them financially, it usually considers the financial means and ability of the parent involved. Additionally, the court will look at the present and past living standard of the child. This is the status that the court tries to uphold in its order.

CHILD’S INTERESTS: According to Section 4 (3) of this Children’s Act, the best interests of the child are also brought into consideration. “Any act shall be considered to be in the interest of the child if it is calculated to firstly safeguard and promote the rights and welfare of the child, and is aimed at securing these interests,” the law states.

DEATH OF CUSTODIAN: If a parent who has been granted the custody of the child dies, the other parent who was declared unfit to have full custody of the child may not become the automatic custodian. This is according to Section 83 (3) of the Act. “The parent declared unfit shall not upon the death of the other parent be entitled to legal custody of the child except with the leave of the court.” The father of the child may be granted custody even if he and the child’s mother were not married. “If he passes on, the mother of the child shall exercise parental responsibility either alone, or with the guardian the father may have appointed,” says the Act.

 

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