Custody & Maintenance, Parental Responsibility & Child’s Best Interest Considerations, The Children’s Act 2022.

Emphasis on Equal Parental Responsibility

The Act defines parental responsibility as all the duties, rights, powers, responsibilities, and authority that by law a parent has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child. Of note, is that parental responsibility is conferred by parentage. However, the Act provides for other ways in which persons can acquire parental responsibility over a child including through adoption, guardianship & foster care. While parents have had the duty to provide for the child’s 5 basic needs, such duty has been expanded by the act to include;

• Duty to maintain the child and in particular to provide the child with water and sanitation facilities;
• Duty to procure the registration of the birth of the child;
• Duty to ensure that, during the absence of the parent or guardian, the child shall be committed to the care of a fit person.

The Act has clear provisions that such parental responsibility is equal and that neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility whether or not the child is born within or outside wedlock. The Act allows persons with parental responsibility over a child to make temporary arrangements, during their absence, to allow a fit person to exercise their parental responsibilities over the child on their behalf. Parental responsibility can always be extended beyond the age of 18 years (of the child) where the need arises.

Custody of the child.

The Act defines custody and the variety of custody that come with the terrain;

• Actual custody- the physical possession, care, and control over a child, whether or not such custody is exercised independently or jointly with another person. (The one living with the child.)
• Care and control- all the rights and duties which relate to the making of the day-to-day decisions concerning the child, and include actual custody of the child. (Decision-making aspect of child care.)
• Legal custody- the conferment to a person, of parental rights and responsibilities over a child, that person having lawful custody of that child for a defined period under an order of a Court of competent jurisdiction.

The court has regard to various principles in making a custody order including the best interest of a child, the conduct and wishes of the parent or guardian, the ascertainable wishes of the relatives of the child, and whether the child has suffered any harm or is likely to suffer any harm if the order is not made and other considerations on a case by case basis.

Did you know?

One is restricted from removing a child from the custody of the person with whom the child has had a home, for a period, whether continuous or not, of three years against the will of that person and without leave of the Court.

Maintenance of a child

This can be defined as meeting the day-to-day needs of a child including shelter, education, medical care, food, clothing, and any other need that arises. A maintenance order has been defined as an order issued by a court directing a specified person to make periodic or lump sum payments for the maintenance of the child on such terms as the court may consider appropriate. It is the joint duty and responsibility of both parents to maintain the child whether they are married to each other or not. It is also the joint responsibility of joint guardians or custodians. Of note, an ongoing separation case of married parents does not stop the children’s court from issuing a maintenance order.

Did you know?

(Step-parent provision) The Court may make a maintenance order in respect of a child, including a child of the other parent who has been accepted as a child of the family notwithstanding the absence of an adoption order. The court takes into consideration several circumstances including but not limited to; the income or earning capacity, property and other financial resources that the parties have, the financial needs, obligations, or responsibilities that each party has or is likely to have in the immediate future, any physical or mental disabilities, illness or mental condition of the child, how the child is being educated or trained, whether a person has assumed responsibility over a child and many other considerations on a case by case basis. The court can vary a maintenance agreement if such variation is reasonable and in the best interest of the child.What are some of the best interest considerations? The best interest of the child is the principles that prime the child’s right to survival, protection, participation, and development above other considerations and include the child’s rights under the Constitution of Kenya, the Children’s Act 2022, and any other relevant laws.

1. The age, maturity, stage of development, gender, background, and any other relevant characteristic of the child.
2. Distinct special needs (if any) arising from chronic ailment or disability.
3. The relationship of the child with the child’s parent(s) and/or guardian(s) and any other persons who may significantly affect the child’s welfare.
4. The preference of the child, if old enough to express a meaningful preference.
5. The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity.
6. The stability of any proposed living arrangements for the child.to give the child love, affection, and guidance.
7. The motivation of the parties involved and their capacities
8. The child’s adjustment to the child’s present home, school, and community.
9. The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
10. The capacity of each parent/guardian to co-operate or to learn to co-operate in child care.
11. Methods of assisting parental and/or guardian co-operation and resolving disputes and each parent/guardian’s willingness to use those methods.
12. The effect on the child if one parent/guardian has sole authority over the child’s upbringing.
13. The existence of domestic abuse between the parent/guardian(s) in the past or currently, and how that abuse affects the emotional stability and physical safety of the child.
14. The existence of any history of child abuse by a parent and/or guardian(s) or anyone else residing in the same dwelling as the child.
15. Where the child is under one year of age, whether the child is being breastfed.
16. The existence of a parent/guardians conviction for a sex offense or a sexually violent offense under the Sexual Offences Act.
17. Where there is a person residing with a parent or guardian, whether that person has been convicted of a crime under the Children’s Act, the Sexual Offenses Act, the Penal Code, or any other legislation or has been adjudicated of a juvenile offense which, if the person had been an adult at the time of the offense, the person would have been convicted of a felony.
18. Any other factor which may have a direct or indirect effect on the physical or psychological well-being of the child.

Quick FAQ’S

1. What if one parent does not provide for the child? Do they still have custodial rights? Yes, until a court in the best interest of the child finds that such custodial rights should not vest in them.
2. The mother or father of my child is not present in their lives. Do we still have equal parental rights and responsibilities? Yes, until the court orders that it is in the best interest of the child to remove such parental rights and responsibilities from the absent mother or father.

3. What happens where persons that share parental responsibility cannot seem to agree on parenting aspects? Is court the 1^st stop?  One can enter into a parental responsibility agreement by themselves, with the help of the children’s office, their advocate(s), or a negotiator or mediator. The court can be the 1^st stop for the parties where an action can be taken over the child that cannot be undone e.g. the child is about to be taken out of the Kenyan jurisdiction, is being abused or one’s parental rights and responsibilities are being infringed.The Act gives guidelines on what should be contained in such parental responsibility agreements.

4. Who is a fit person? one who it can be shown to the satisfaction of the court to be of high moral character and integrity, and who is capable of exercising proper care and guardianship of a child.

5. What happens when a child has been removed from the Kenyan jurisdiction without the leave of their parent or guardian? The court will make a wardship order or a production order as it may deem fit.
6. My child has been removed from my custody but they are still within the Kenyan jurisdiction. What do I do? One may approach the court for a production order of the child and for the return of the child’s custody to the parent or guardian who had custody before.
7. I suspect person A is about to remove the child from the Kenyan jurisdiction without my consent. What do I do? File an urgent application with the court seeking prohibition of removal of the child from the country by the said person.
8. Person A was given custody/ access rights to the child but the same is no longer in the child’s best interest. What do I do? Approach the court with the facts and seek revocation/suspension of the said custody or access orders.

The Wealth and Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills, and experience on matters of family law including but not limited to children matters spanning domestic and inter-country custodial arrangements, maintenance of the children, litigation, and mediation of these and many other matters affecting the parenting relationship and the rights of the child, Adoptions and Guardianships, Succession & Probate Matters, and Divorce/ Separation and Matrimonial Property matters spanning across the East African Region and other International Regions.  We are practical and innovative in our approach and offer quick turnaround timelines. We will be delighted to receive your feedback, and inquiries and offer our services on this and any other of our practice areas.Please click here to download the article

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At CM Advocates LLP, we have an outstanding team of Wealth and Private Client lawyers with a wealth of experience in matters of marriage, divorce, children custody and maintenance, estate planning, family businesses, wealth management and trust administration, spanning across the East African Region. We welcome you to take advantage of our team of experts, consult on these critical family issues, and learn how to better protect your proprietary interests in your family.   Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact  us on law@cmadvocates.com or dgichuru@cmadvocates.com

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Disclaimer

This article is for informational purposes only and should not be construed as legal advice.