Frequently Asked Questions (FAQs) on Child Custody and Support in Kenya

At B M Musau & Co., Advocates LLP, we often encounter inquiries about child custody and support, under Kenya’s family law. In this article, we address some frequently asked questions to provide clarity on this complex subject, drawing on both local statutes and international best practices.

 

What is child custody?

Child custody refers to the legal rights and responsibilities a parent or guardian has towards a child, including decisions about the child’s education, healthcare, and overall welfare. Custody may be legal (decision making power) and physical (where the child lives).

 

Who may apply for child custody in Kenya?

In Kenya, the following individuals may apply for child custody:

• • Biological parents
  • Legal guardians
  • Relatives or any person who has a legitimate interest in the child’s welfare.

What are the types of child custody recognized in Kenya?

Kenyan law recognizes several types of custody arrangements:

• • Sole custody: One parent is granted full custody, with the other parent possibly having visitation rights, usually called access.
  • Joint custody: Both parents share custody and make decisions together regarding the child’s upbringing and overall welfare.
  • Split custody: Custody is divided between parents if there is more than one child, with each parent having custody of at least one child.
  • Third party custody: Custody granted to a non-parent, such as a grandparent or close relative, if it is deemed to be in the child’s best interest.

How does the court determine child custody in Kenya?

The primary consideration for the court is the best interest of the child, including:

• • The child’s age and gender
  • The physical and emotional needs of the child
  • The child’s preference, if the child is of sufficient age and maturity
  • The stability of each parent’s home environment
  • The ability of each parent to provide for the child’s needs

 

May a custody order be modified?

Yes, custody orders may be modified if there is a significant change in circumstances that affects the welfare of the child. Either parent may petition the court for a modification.

 

What is child support?

Child support refers to the financial contribution one parent makes to the other to cover the costs associated with raising the child. This includes expenses for food, clothing, education, healthcare, insurance, and other necessities.

 

How is child support determined in Kenya?

Child support is determined based on:

• • The needs of the child
  • The income and financial capability of each parent
  • The standard of living the child is accustomed to.

 

What happens if a parent fails to pay child support?

Failure to pay child support may result in legal consequences, including:

• Attachment of the parent’s salary
• Seizure of assets
• Fines or imprisonment for contempt of court

 

May child support be adjusted?

Yes, child support payments may be adjusted if there is a significant change in either parent’s financial situation or the needs of the child. The change must be proven by documents for the court to grant an adjustment.

 

Is mediation available for child custody and support disputes?

Yes, mediation is encouraged in resolving children-related disputes amicably. It allows parents to work together with a neutral third party to reach a mutually beneficial solution regarding custody and support.

 

What are the legal procedures for obtaining custody or child support orders in Kenya?

The legal procedures typically involve:

• • Filing a petition in the Children’s Court
  • Attending court hearings
  • Presenting evidence and witnesses
  • Following court directives and orders

Sometimes, disputing parents may be able to reach a settlement at the Children’s Office without having to go to Court.

 

How long does it take to resolve child custody and support cases in Kenya?

The duration varies depending on the complexity of the case, the court’s schedule, and the cooperation of both parties. Simple cases may be resolved in a few months, while more complex cases could take longer.

 

May nonparents apply for child custody or support?

Yes, nonparents, such as grandparents, aunts, uncles, or any person with a legitimate interest in the child’s welfare, may apply for custody if it is in the best interest of the child. They must, however, demonstrate their interest in having custody of the children as opposed to the parents of the child.

 

What rights do fathers have in child custody and support cases in Kenya?

Fathers have equal rights to apply for custody and are equally responsible for child support. The court evaluates each parent’s situation without bias towards either parent.

There is, however, a general rule established through decided cases that custody of children of tender age, i.e. below 10 years, should be granted to the mother unless there are exceptional circumstances that place the father on a higher priority over the mother. These exceptional circumstances include a mother’s disgraceful conduct, immoral behaviour, drunken habit, bad company, among others.

 

Are international child custody and support orders recognized in Kenya?

Kenya may recognize international child custody and support orders under certain conditions, particularly if the country involved is a signatory to relevant international conventions such as the Hague Convention on Child Abduction.

This article provides a general discussion of the law as it stands at the moment and is not intended to be legal advice. For specific legal guidance, please consult B M Musau & Co., Advocates LLP.