CHILD CUSTODY & MAINTENANCE UNDER KENYAN LAW.
Child custody is always an emotive issue when the relationship between the parents has broken down. When the parents of a child do not agree as to who will stay with the child, the resultant dispute is a child custody dispute. Issues involving child custody will normally also attract resultant questions with regard to who maintenance of children and child support. The purpose of this article is to enable the reader to be able to distinguish between child custody and child support, as well as to understand the law as is applicable to both.
CHILD CUSTODY CARE AND CONTROL
Section 81 of the Children’s Act Number 8 of 2001 Laws of Kenya, defines child custody to be “so much of the parental rights and duties as relate to the possession of the child“. Care and control means “actual possession of a child, whether or not that possession is shared with one or more persons.”
Child custody is further divided into 2 types of custody:
- Legal Custody:- This refers to rights and responsibilities that are conferred on by a custody order. These include the responsibility to maintain a child. It is only a parent who has been given legal custody of a child, that is liable to pay child maintenance. This is the reason why most court orders in matters involving children will first grant joint legal custody before proceeding to deal with actual custody of the child and maintenance.
- Actual custody:- Actual custody of a child is synonymous with care and control of a child. It is the actual possession of a child whether or not the possession is shared with the other parent or any other person. Thus whoever the court gives actual custody of the child, is the person who will live with the child.
The court is always guided by the best interest of a child while making a determination on which parent to grant actual custody. Under this principle, case law is settled that a child of tender years, i.e. a child under the age of 10, is at first instance to be given to the mother, unless it can be proven that the mother is unable to take care of the child, or is even a threat to the child.
However, Section 83 of the Children’s Act sets out the following principles guiding the court in making a custody order. The court must consider the following:
- The conduct and wishes of the parent or guardian of the child
- The ascertainable wishes of the relatives of the child
- The ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his/her home in the last 3 years before the application to the court.
- The ascertainable wishes of the child.
- Whether the child has suffered any harm, or is likely to suffer any harm if the order is not made,
- The customs of the community to which the child belongs.
- The religious persuasions of the child
- Whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether or not those orders remain in force.
- The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
- The best interest of the child.
Once the court considers all the above, it will then proceed to make a custody order. Many times a court is guided by official inquiry reports made by Child Services, who then decide whether or not to recommend either parent to have custody of their child.
CHILD MAINTENANCE
Child maintenance refers to the duties of parents to provide for the basic needs of the child. The basic needs are listed in Section 23 of the Children’s Act as :
- Food
- Shelter
- Clothing
- Education
- Medical provision
Article 53 (1)(e) of the Constitution provides that a child has the right to equal responsibility from both parents to maintain the child. On this basis, the Children’s Court will take into account the above needs of the child and then split the needs equally between the parents by the consequent making of a maintenance order.
Under Section 76 (3)(f) of the Children’s Act, the court is mandated to consider the financial ability of each parent to maintain the child. To this end, courts usually ask both parents to swear an affidavit of means which shows how much the parent earns in a month, vis a vis how much the parent spends.
Where either parent violates a maintenance order, it is treated as contempt of court, and the violating parent risks jail term on the same.
CONCLUSION
In conclusion, the guiding principle behind the making of either a custody or maintenance order is the best interest of the child. Once parents take this into account, it redudes the potential of lengthy litigation in court on matters involving child support and custody.
Like!! Thank you for publishing this awesome article.
I’m a certified professional mediator practicing on family matters. I have handled quite a number of these disputes. It is true that the primary interest is the child’s. In my experience, the reason for disputes is because every parent presents their personal issues camouflaging them as an interest in the child. One has always to move the dispute to the real issue which is both parties have differences they are unable to resolve or communicate to each other. Unlocking the dispute in this way causes the parents to see selfish interests versus their children’s interests.
This is very true Anthony. It is always very important to have a child centered approach.
Hi i need some advice on child support lodged in fida
Good afternoon.
Thank you for reaching out to us to assist you on our matter.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers. We look forward to touching your life.
How can I reach you
Hello Abraham,
You can reach us through e-mail on info@begislaw.com, or through phone number 0723313833.
Hello How can you help when you have a case of Child custody…
Hello Job,
We can help you work out the child custody case. Kindly share your number for ease of communication.
Please help, I separated from my partner due to irreconcilable difference but he’s kept coming to my place. Whenever he comes and I disagree with him on whatever, he takes my 3year old girl away for a while. Now, he took her almost a month ago, he doesn’t pick my calls,he doesn’t respond to my texts, I have asked his friends and family to talk to him to bring back my child but no response. I went to the police, they contacted him but he hang up and never picked their calls again. I have taken care of the child single handedly ever since I was five months pregnant with her through to now he never supported her. I feel he’s using my 3 year old girl to settle scores with me and I really fear for my young girl. Please help me I am so desperate.
Hello Joyce,
My name is Elvis Abenga and I am so sorry to hear about that. Please share your number with me and I will give you a call and we can get your child back.
Kind regards.
I need your support somewhere
Good morning Gilbert.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
Thank you Anthony for the write. I have a real issue that I don’t know how proceed. How can I get in touch with you?
Thank you.
Hello Njeri
Please reach us through e-mail at info@begislaw.com and we will sort you out. Alternatively you can share your phone number and we will call you.
0715373169
my name is dan kuria we seperlated with my wyf after i stoped working becouse of corona virus she went with my children 5yrs and 6mnths both girls is now two mnths i have neva talked to my children becouse the mother does not take my calls or reply my messages how can i get help
Hello Daniel
Sorry to hear about the children. We can help you get access to your children by filing a motion in court.
Kindly give ur number or call me 0721675468
Hello Kelvin,
We have spoken,
Many thanks.
Kindly call me please have issue concerned about that,am going through right now feeling to do terrible thing please show me how to handle this.no 0792004552,am Ngetich Leonard
Hello Leonard,
It was good speaking to you.
Kind regards
In my case I live with the children,their father takes them every sunday.now that schools have closed he wanted to take them to visit their grandparents I prepared them and he took them.i realised later that he went to stay with them I the house he is living with his girlfriend.(the reason iam against this is because she works in a pub and even drinks I dnt think it’s a safe environment for my boys) I need to know how I can get help so tht my boys can still see their father but stay away from the negatives? Plz help.
Hello Peris,
My name is Elvis Abenga, from Begi’s Law Offices & Chambers.
In that case, you can ask for supervised access. This is where the father sees the children but only in your presence or in the presence of someone that you trust. You can also move to the court to get custody orders and have it stipulated that the father cannot go with the child to places such as his home.
I have a question … pertaining the law…will a father who insists on termination of the child .and disappears when this isn’t done have the right to come back in future claiming the child …and if so what can be done to rule out the possibility
Hello Maureen,
My name is Elvis Abenga from Begi’s Law Offices & Chambers.
In such a case, the father may still be able to come back and claim parental rights and responsibility over the child later. The only way to extinguish that is to get full and sole legal and actual custody of the child once the child is born. That is the only sure way. We can help you with this if you share your phone number.
Call me on 0723229843
Hello Lilian
We will be in touch shortly.
Hello, I’m having a similar issue. Kindly assist me. My previous partners keeps coming back every time I move on and starts demanding to see his child. When he breaks up my relationship he stops providing or even visiting. Is there a way to stop this cycle permanently???
My number is 0757717255
Haw can I reach you..
Hello Raphael,
Kindly share your number and we will be in touch.
How can I get in touch with you
This a post I had made on fb,
Hello guys, I believe there’re smart people here in our midst to advice me out of my marriage history I’m about to share.
Ok I’m Alex & a father of 3 boys, 2 from my former wife. On 2017 I realised my then wife had infidelity issues of which I confirmed beyond reasonable doubt, this was almost end of that year. Upon my confirmation, I decided to shift from the house to just stay alone than staying with an adulterous wife…… I left everything there was in that house including my 2 boys but just my documents.
After like 4 months ie. early 2018 now, she bungled my boys into her friend’s car and took them up country to my mum, left them at gate without uttering a word to my mum, then speed off to kasarani where we used to stay and swept the whole house to where I’ve never known to date.
I took my 2 boys back to Nairobi after some few days, stayed in my kabedsitter then, and enrolled them to a different school. Ever since close to 4years now, I’ve never heard thru’ a call/SMS nor seen her….. yaani no slightest effort to at least know anything about kids, where they stays neither whether they go to school & which school……. she literally abandoned her own kids.
However, after struggling with my kids for like 2years alone, I met a lady (no kids)whom I fell in love with, narrated to her my family history and later we married. She is the best for my 3boys & I. Come 2020 DV lottery, I applied as I’ve been for the last 9years and by God’s grace I was selected N.B this time round I applied with my current wife and our 11/2years son, the 2boys & myself. Now my BIGGEST WORRY is, I had commenced the process but following shiko hope’s videos on the reasons one can be denied visa, she said a consular can deny Visa incase one parent wants to move with kids without the other and without her/his consent……
Where would I start for someone who has abandoned her kids for 4years for heavenly sake?
Can anyone think she has any good will for me and my family to give consent?
What legal action should I seek to proceed without her involvement now that even has no clue about my selection? PLEASE PEOPLE WITH THE LEGAL KNOWLEDGE ADVISE ME.
Good morning Alex.
We are sorry for the matter at hand.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
How can we one contact you?
Good morning Ann,
We are sorry for the matter at hand.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
Good morning.
Thank you for reaching out to us to assist you on our matter.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers. We look forward to touching your life.
What other selfish needs besides provision of basic needs for the children?
Hey, I need help.
We just had a baby boy, after 4 years of struggle to get a baby.
Barely 3 weeks old and my wife does not want me to be with the son.
She is showing me a sign that I am not supposed to be dear the kid.
She can come up with fake reason that does not add up completely.
What do I do? It’s me providing everything in the house.
My wife doesn’t have a job but she has a sharp mouth/tongue..
I feel my son will be turned against me.
Kindly help 0728649788
Well said. Will appreciate.
👍
Hello I have a friend who has a child out of wedlock mistakenly and he doesn’t work the job was cut off by covid and the lady carrying the pregnancy is threatening him that she take him to court for child support…please advise my friend is in depression,,,, my question is does mpango wakando claims child support
I’m an a US citizen and I have a dear friend in Kenya who’s ex girlfriend married another man and ran off to another country with their child and got married.
That marriage started to fall apart and she tried to get back together with her child’s father (my friend) . He said he wanted and always wanted to be apart of his son’s life and has always offered to help support the child financially even when she wouldn’t let him see his child. But he refused to be with her romantically due to her still being married and also how badly she hurt him when she basically stole his son from him. This was not what the mother of the child wanted to hear. She became very angry and decided he would never be able to see his son again. She left to be with a new man and is living in Paris and has left their child with her mother (the child’s grandmother) in Kenya, in the same town as the child’s father.
The father has tried to pay for his sons school a bed the mother tells him to stay out of their lives and the child can decide when they are 18 if they want a relationship with their father.
The child’s mother financially supports her family in Kenya, so she has told the grandmother not to let the child see his father or she will cut her off financially.
If the mother has left her child with a grandparent for months, there is no custody agreement, and the father can support the child and wants to. According to Kenyan law does he have a rights to visitation or even custody while the mother is living out of the country?
Being from the US am not aware of the Kenya law, father advocacy groups or pro Bono lawyers willing to help?
Hello Lisa,
I am not sure if you were able to get any help in the matter. However, your friend has a right to access his child without restrictions. This can be handled competently at the Children’s Court. This is more so since the child is not even living with the mother. He can petition the court for full exclusive custody.
Hi guys. I really need your advice. My used to be wife decided to take my son away from me, went and dumped him at her mother’s place in Taita then she moved in to her new lover. How can I get access of the boy. My son is 2 years. Naogopa atanisahau.
Hello Jacob,
We can help you get access and eventual full custody of your child. Please reach out to us by sending an e-mail to info@begislaw.com and we will help get your child back.
What if you parted ways and the wife doesn’t allow you to see your children? Can there be an agreement in that each parent spends some time with the children?
Hello Danny,
It is possible to have a parental responsibility agreement that allows both parents to spend enough time with the children.
How do you deal with the cases of women getting children by different men then only one man tasked by the responsibility ?
How will the court ascertain and ensure that both parents take their responsibility equally?
Hello Derick,
In such cases, the man is not the only one to take responsibility. The Constitution states that parental responsibility must be shared equally by both parents of a child.
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Hi my lady decided to walk because of apparently no reason and I have been so frustrated as when child was born had alot of difficulty and I was there from the start, she moved out and am only allowed to see the child once a week and specifically Wednesday, i never pictured me away from my own daughter I felt it’s selfish and every day I fall deep into pain knowing she is not on my side everyday. I just want to live with my child period, how can I handle this.
Hello Brian
So sorry to hear about this. We can help you with this. You can move the court for custody of the minors or at least reasonable access to them. Kindly share your contacts so that we reach you.
My wife decided to carry everything from my house and take with my son without us having any problem now she has reported me to children’s department and FIDA at the same time . When I reported to children’s department I was told to send her 3000 per month as we wait for the determination of the case come April but now she’s and the fida people are just forcing me to handle the case at fida first before the children’s department one . I need my son how can I go about this case? Help!
Hello Joseph Ogonda,
In your case, I presume your wife and the FIDA people have not moved the court. That is the reason why you are being pushed to solve issues at FIDA.
My advice to you is to move to court for child custody. Let all the issues get addressed through the children’s court. Once the matter is in court, it will override whatever FIDA and the children’s department are doing.
Hi Elvis,
I’m a Kenyan American father of a 7 year old girl who is American (born here in U.S) but lives in Kenya with the mother who is Kenyan.
Did you mean that by Kenyan law, if my daughter’s mother has sole legal custody of the child, then I am not legally required to pay maintenance?
Also, what’s a good phone number to reach you for legal services? Thanks.
Hello,
Apologies for the delay in replying to this mail. If the mother of the child has been granted by court sole legal custody of the child, it means that you do not have any duty to provide for the child in terms of maintenance.
My phone number is 0723313833. I look forward to being of service to you anytime.
Kind regards.
Elvis Abenga
hae ineed help and advice iamarried and blessed with three children on 2018 imet alady at whtsap and the lady seduced me she travelled all the way frm mombasa to nyahururu twice later she told me that she got pregnant .she moved to court without myknolwedge .last month found my salary being deducted and the payslip read cuort attachment .is this procedural .iam daniel pls advice
How would u assist, need of child support from the father who’s a foreigner, currently in the country but planning to fly back to their country soon
Hello Lucy,
In this case, we can help you file for custody and then get an order restricting them from flying back to their country until the issue of child support is handled. Please share your contact to me so that I can call you.
Hi,what happens when one partner leave the country after separation, do the kids care fall to the father?
Hello Jackson, when one partner leaves the country after separation, whether or not the children remain with the father depends on several different factors. Overall, what the court considers is what the best interest of the children is. The court will consider the age of the children, the environment of living, etc
Call me on 0723229843
Hello Lilian, we will be in touch shortly.
Hello sir,
If a wife decides to leave home after cheating on you. then she goes on to start asking for support yet she is involved with another man, how possible is this? is it right for her to seek support yet she is the one who went away without been chased?
Hello Nick
It really depends on the kind of support she is asking. Is she asking for spousal support, or for child support. Kindly let me know so that I can advise you properly.
Hello Elvis,
My name is Sam and I have same issue. I lost my job at the onset of the pandemic and my wife decided to end the marriage. I have been able to support the family through savings and other income sources. My wife has never worked and no way to support him but is now threatening to take away my son. I want to have actual custody of my son and she can see him anytime she wants. Please reach me on 0798994220. Thanks.
Hello Sam,
We look forward to our meeting.
Kind regards
Hi can I ask for child support from a man that is married but we have a child together.. His a teacher and he say’s I cannot file for support because a government teacher cannot be forced to pay for child support through his salary
Hallo Elvis, My name is Francis Cell No. 0723926251,On 27th December 2020, My wife left with all belongings in the house plus 3 children.12,9 and 5, she did not go to her parents home, or my parents home, efforts of reaching to her for reconciliation have failed, whenever i try to talk to the children she does not pick calls, and when i happen to talk to them she has spoiled their mind by telling them i dont pick calls when they call which is is a lie, how can i get access to my children?
Hi. I would like to file a child custody case urgently. Are you able to assist me?
Hi, my sister’s ex husband was not there for my sisters pregnancy and after a month of her giving birth he sent her a divorce on a small dirty chit of paper that he seeks divorce from her (muslim so they say accepted) after that my sister filed for divorce and the imam/kadhi there ordained maintenance of 8k monthly from the father and was told he can choose a day and time to see the child of which he never came. he has seen the child after she was born twice that when she was 3 & 7 days old only and he has been quite ever since except he fulfills sending the maintenance but suddenly 3days ago he sends an email claiming he wants to be a part of the child’s life and will meet on Saturday when he is free. we cannot deny him access right but what can we do at this point as first we don’t want to get into court to fight for custody ye until we are sure of his real intentions? please advise.
I have two children, two separate fathers. The First dad went MIA. The second one I managed to take to the court for maintenance. Issue is we have agreed to everything except the maid and the rent. I pay for example sh30,000 for rent and out of that, he is only willing to pay sh3500.As for the house help we pay sh10,000 and he says he can pay sh2500. His urguement is my other child lives with me. How is rent or such services as a maid quantified?
David Muindi
I was in a relationship with a lady for about 11years. We have a 7years old son,recently she took the child and got into a relationship with a man who’s made her pregnant. She has completely stopped my son from seing and calling me. I urgently need access.
My number 0711200223
Hey I am a mother of two kids separate dad’s and pregnant with a third one from another man how do I make my mum a legal guardian in case anything happens to me because I don’t want my kids to be separated…
Hi am Walter,I was living with the mother of my daughter and she decided to leave with my beloved girl whom,I liked spending time with while am in any difficult situation and feel relaxed now run away with her and now they have denied me not to see her how can I get helped
Good morning Walter,
We are sorry for the matter at hand.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
Hi Elvis,
My wife left after looking for and giving flimsy reasons to her parents who at one time told her they do not see any reason for her to leave. Of late, my little daughter has been crying uncontrollably saying she doesn’t want to be punished anytime she feels like she is making a mistake.
On enquiring, her elder sister told me it is because she gets a scolding and a beating by her 16yr old cousin in whose care the two are left even during weekends when I am not available to spend time with them.
I feel their mother is grossly irresponsible as there are times she would leave the kids to go drinking not considering she was lactating.
The children’s officer advised that she gets custody and I provide for their education and health needs which I do in addition to clothing and occasionally food.
They now live in a single room with the mother who has invited her elder sister and her daughter to live with in a place that has no hospital.
I work away from home and am only available over certain weekends depending on the workload at the office.
Would it be possible to gain custody of them so that they can live in a better environment with better care?
Good morning Leinad,
We are sorry for the matter at hand.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
Hi Mr. Antony
Kindly, how can one reach you?
I have a case.
My email is Stellamwirigi1@gmail.com
Will appreciate
Thank you
Good morning Stella.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
Haloo am joseph…we separated a month ago for many reasons now my wife says she doesnt recognise me and even i dont have right to be with my two yrs olds daughter….she is planning to get married again…if she marries to another man can i be granted right to be with my daughter alone because i fear they will mistreat my child
Good morning Joseph,
We are sorry for the matter at hand.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
my name is joseph we separed with my wife on January and ever since she has denied me access to my kid kindly assist,my phone number is 0700905674
Good morning Joseph,
We are sorry for the matter at hand.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
Very good and informative article. The gaps are in the enforcement of the law. The father of my 3 children is a law maker but has since refused to take up his obligations as a parent. He hides under the fact that his name does not appear on their birth certificates 🙂 . I don’t have the energy to chase him to provide for them, instead I focus my energies on working hard to provide for my children. However, this is good to know incase one day I change my mind and decide to pursue the matter. Also good for referring those who might need help.
Thank you for your kind remarks Judy
Dear Judy,
Thank you for visiting our website. If you ever decide to pursue this, we are only a phone call away
hello my ex wife left my home two and a half years back without a chase, i have remained alone all along but last week she called for birth certs which i have to register their kcse exams the elder is 17,15.5 and11 years can i file a case on custody coz the kids wants to live with me, at what age the kid is allowed to decide, contact 078993893
Good morning Andrew,
Thank you for reaching out to us to assist on your matter. Unfortunately the number you have provided above is incomplete.
Please share the correct number we can contact you on.
Hello Andrew,
Kindly share your contact again. The one you shared previously is missing a digit.
Hello,
I recently separated with my wife, and now she wants to take our two daughters away to the US where she currently have a boyfriend. What can I do to block my children leaving the country without my consent?
Hello,
You can seek orders from the children’s court to sort of keep her from leaving. Kindly share your contact and we will get back to you on this.
Hello I have a friend who have a child out of wedlock mistakenly and he doesn’t work the job was cut off by covid and the woman carrying the pregnancy is threatening him that she must take him to court to claim child support…please advise my friend is in depression,,,, my question is does mpango wakando has rights to claims child support and their agreement was no kids since the relationship was just having happy moments ?
Dear Fabian
Unfortunately, every child has a right to maintenance by the father. It does not matter whether or not there was an agreement with the parents. The woman has a right to sue for child support.
Good Morning Fabian,
Thank you for visiting our website and having a read.
To answer your question, yes the lady has a right to child support from the man as long as he is the biological father.
Hello Everyone,
Mrs in Kenyan and Mr is from EU, not married. We got physically separeted during COVID 19 from the mother after a visit to the familly oversea, and later a separation between the parents after they both reunited in EU. A court order was given to the father and main provider. The mother has been granted right to visit and host the child. Now the mother wants to visit her relatives in Kenya. How is it possible to get the UE country court order being validated, prior the travel, under the Kenyan law and notify authority the presence of the child and the mother in the country? and make sure the child go back to Europe where the child has his/her school, friends, and relatives?
Dear Paulo,
My name is Elvis Abenga from Begi’s Law Offices & Chambers. In such a case, we would need a certified copy of the court order. We then file an application at the Children’s Court to have the order recognized as an order in Kenya. I will write separately to you in a private email on the same.
Kind regards.