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:

1. 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.
2. 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:

1. The conduct and wishes of the parent or guardian of the child
2. The ascertainable wishes of the relatives of the child
3. 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.
4. The ascertainable wishes of the child.
5. Whether the child has suffered any harm, or is likely to suffer any harm if the order is not made,
6. The customs of the community to which the child belongs.
7. The religious persuasions of the child
8. 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.
9. The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
10. 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.

Share Post:

223 Responses

I have two kids of which both of them other men claimed to be theirs. Different mother’s. Both mothers slept with other men when they were pregnant. And they lied about the biological father. What should I do about that. First woman I did not marry and She’s staying with my first daughter but the child birth certificate is under the other man’s name, the second woman I married her legally and after she betrayed me and we divorced. My daughter suffered very much, she even threatened to kill her and then commit suicide. I took my second daughter and she’s under my protection. After that she keeps on threatening me that she’ll go to court, do you think I’ll loose my daughter, because she’ll suffer in her hand. The first child her mother refused to change her birth certificate so I decided to stay quiet till I do DNA. Answer me please

Dear Ahmed Many thanks for your question. This would need a very comprehensive consultation which we cannot undertake on this platform. We have sent you an email for the purpose of setting up the consultation. We look forward to being of service to you. Kind regards.

Hi
I have a Kenyan partner with two children who live in Kenya. Iam a British Citizen (No longer a resident) and not living in Kenya or a resident or citizen. I have been sent a demand letter from my partners lawyer asking for money more than i have been sending. I have sent money all the time right up too this month. My question is how do i reply to this and does any Kenyan laws apply to me if iam not a resident or citizen and not living there

Hello Anth, it is not normal practice for lawyers to send demand letters in children matters. If your child is still in Kenya, the Kenyan courts can exercise jurisdiction regardless of your absence from the country. It is also possible to enforce money orders outside Kenya depending on the country you are in. Should you be interested we can discuss more in a consultation session. Would you be open to that? Kind regards.

I have a quary I slept with a girl when I was in rehab,now she claims that she has a baby girl of mine and want maintenance.what do I do?

Dear Ogweno, Thank you for your query. Kindly share your contact with us on email :info@begislaw.com
Someone from the office will be able to get back to you.

Hello Ahmed, I need help. Do I have a right to apply for a restraining order against the father of my child. Since conception of this child he has not been there. He has been absent since I conceived and developed health complication so the doctor advised that I be restrained from all heavy duties including s*x until the baby had settled in the uterus. This made him ununderstanding what he wanted was s*x even if it would cost him my life or the life of the child. He called it a legal right not minding whether this legal right would make him lose his child and wife. So he started maltreating me and to date there is nothing that my child has that was bought by him. Absolutely nothing. My son is at the age where he is about to start walking and his father has been absent in all his responsibilities. Please advise.

hi,i have a similar case.my husband’s infidelity made me to quit our marriage of 10 years in 2020 sep.from then he hasnt been responsible to our two kids aged 9 and 4yrs.what can i do so that he can take some of the responsibility..he moved in with another woman and blocked me on all contacts.help

Hello Emily, Thank you for reaching out to us, Kindly assist us with your phone number and one of our lawyers will reach out to you for more information and assistance on child support. You can also reach us via 07 95 797 897/ 07 43 235 923. We look forward to being of service to you

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.

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.

Am married since 2012 and we have a girl 8yrs old, my wife and kid left my house last month and she has not taken her to school yet for the second term. We went for mediation on children’s office but this week but we didn’t agree on anything. I was given a letter to take to’ think government lawyers in Nairobi KSC house and told to go back next week. Please advise me what to do. Thank you.

Hello Dan, I trust that you’re keeping safe, Our customer care team will be reaching out to you, You can also reach us on 07 43 235 923/07 23 313 833 for assistance.

Hi did get any help at fida? Kindly i am asking because i am in the same situation. Will really appreciate feedback. Asante

It is good to have the interest of the child at heart. But we fathers we have been pinned down by the law because sometimes we cant factor in the idea of Childs’ best interest. If i may ask under what circumstances can a father be granted the custody of his child

Dear David, A father can be granted custody when it is in the best interest of the child. This is more so where it is demonstrated that the mother is harmful, dangerous, or negligent with regards to taking care of the child. Kind regards.

Hi, how do someone go about it when it comes to a case of infidelity? Can a father be allowed full custody of a child when the wife is cheating, please i need your help, contact me on 0704640482. As soon as possible

Dear Kennedy That depends on many factors. Please call me on 0723313833 and I will advise you. However, on a basic level, infidelity by itself without other factors is not enough to deprive the mother of custody.

Elvis have a big issue on kids custody.my ex wife ran way with the kids and i cant access them. How can i legally acquire their custody
please reach me through 0704869963.i will appreciate a lot

Hi Elvis ,I have an issue with upkeep of a child,my partner ran away from my house to other place ,in last three months always demanding in which I send her certain amount but still arguing she needs more due to my reasons I can’t send her more money because she has interest on it not for a child ,I requested to meet my child by she decline reaching a place where she says better to assume I die from accident and the she proceeded for children office that am not responsible for the child

Hi Elvis,i have an issue of the child upkeep and my case is in the court.My wife of 11 years decided to leave our matrimonial marriage after planing to get a job on the Arab countries. She thought that she will survive without me but after leaving my house she immediately run to the children welfare and demanded for the deduction of my salary. Since 2017 up to now the case is in court demanding to be given 1/3 of my salary.my 1st born is in form one and i’m the one paying school fees.She is trying her all means to make sure that im not working and my worry is how will i pay fees for my boy if i resign because of frustration.kindly assist.

Hello Godfrey, Sorry on what you’re going through, it is possible to have shared child custody and shared child support, for more advise and directions on how to go about it. Kindly book an appointment with our advocate any day of the week from Mon-Fri 8AM-5PM at a fee of 4000Ksh, Kindly note that this meeting can happen virtually or physical. Please reach us on 07 43 235 923 or 07 23 313 833. Looking forward to being of service to you.

Hello, I’m Catherine, My baby daddy refused to take care of my baby because we separated, what do I do
0742296974

Hello Catherine In such a case, you have the right to institute child support proceedings against him at the children’s court. We will reach out to you to see how we can be of help.

Greetings, I need some advice on how to go about the process of getting my kids back. I recently got divorced and my wife took the kids with her. She went and got a job which means my kids are being raised by a maid. Just the other day she wrote to me and told me she was having problems with the maid. Apparently, the maid has not been taking good care of the kids to the point they even fell ill as a result. She now wants to get rid of the maid and enroll them in a daycare of which I am against. I would like to get custody my the kids and take care of them myself cause I work from home. What is the best way to approach this?

Hello Joseph, thank you for reaching out to us. We have responded to you via the email provided, kindly check and revert for more assistance. You can also reach out to us via our phone number 07 43 235 923. We look forward to being of service to you.

Hello Abraham, You can reach us through e-mail on info@begislaw.com, or through phone number 0723313833.

Hi am lewnora Atieno Okongo, am 24 years old, i want report my case. I have a 11 months baby with a Nigerian man, before i got pregnant he went to see my parents, when i got pregnant he sadly changed, he sent me a way from the house now he is not talking responsibility of the child may until i give him some threat of police and he is here in kenya out thename we are married. Please help me so that he can take every responsibility of the child even if we are not together, this is baby is my blood and i can never allow my blood to suffer because he is the future of tomorrow 😭🙏

Hello Lewnora, am sorry on what you’re going through, yes it is possible to have child support from the father of your child, For more advise and direction on how to go about it, Kindly book an appointment with our advocate any day of the week from Mon-Fri 8AM-5PM at a fee of 4000Ksh, Kindly note that this meeting can happen virtually or physical. Please reach us on 07 43 235 923 or 07 23 313 833. Looking forward to being of service to you.

Hi Elvis ,I have an issue with upkeep of a child,my partner ran away from my house to other place ,in last three months always demanding in which I send her certain amount but still arguing she needs more due to my reasons I can’t send her more money because she has interest on it not for a child ,I requested to meet my child by she decline reaching a place where she says better to assume I die from accident and the she proceeded for children office that am not responsible for the child

Hello Sammy, thank you for reaching out to us and we sympathize with you through everything that you may be dealing with. We have responded to you via the email provided and your response will be highly appreciated for more assistance. You can also reach out to us via our phone number 07 43 235 923. We look forward to being of service to you.

Hello Kimanz,
Thank you for your patience while awaiting a response from us.
Our front office will be touch with you 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 my name is rose I have been married for 13yrs now,with four kids ,we have not been in good terms with my hubby so I am planning of going to look for job in the middle East,but I want to bring a nanny I will pay for taking care of them ,what do I need to do to prevent my hubby for not taking away my kids,in the future and allowing me to see them.

Hello Rosemary, Kindly share your contact with us on email :info@begislaw.com
Someone from the office will be able to get back to you.

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.

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.

Hello am eric, i need help. I married a woman with a kid, my question is am i obligated by the law to educate the kid, i gave the woman money for the fees and she squandered it and took me to the chief to force me to pay

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.

Hi my marriage has git rock bottom, my hubby works with military, I need advice because I feel I need a divorce

Very informative piece. I read the comments and indeed, having such an educative blog is doing a great service and investment to a child’s interest. So thank you.

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.

Hello good afternoon my name is rukia, am Ugandan btI stay in Kenya, I separated with my baby daddy who is a Kenyan and he remarried again, since 2019 I don’t have access to my twins,they are just 7year, they don’t allow me talk to them or even stay with them, the last time I got to see them was this year on 09-October, and the kids where not looking good, they were just crying, the father claims that the woman he remarried is the one who doesn’t want me to get access to the children yet for her she come with her 3children and a grandchild in her new marriage and she stays with them, the last time I talked to my father-in-law he asked me to write to them an official letter asking them to stay with the kids which I don’t accept coz those are my children, please how can you help me so that I can get my children custody coz as you know a child staying with a step mom, please I need your help, my number is 0708402313

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

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.

Hello i need assistance i found my girlfriend cheating on me and led to our split but we have a child that am not 100% sure if he is mine…. How am i supposed to handle such please help

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.

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

hello, my name is ken. kindly advise. can i get custody of my 14-month old girl on grounds the mother cannot care for her because she is jobless (in college) and has the baby raised by her parents

Hello Ken Custody of such a tender child is often with the mother. It will be very difficult at that age for the court to give a girl child over to the father for complete custody. However, the court can let you reside with the child if the mother is not residing with the child. Kind regards.

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.