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One of the most common issues arising from the separation or divorce of parents is the issue of child Custody and Maintenance. There are two types of custody mainly physical custody and lawful custody. Lawful custody can be obtained through an operation of the law, a written agreement or an order of the Court. It gives the parent or guardian the right to make decisions surrounding the child’s welfare and upbringing and this can be awarded to both of the parents also known as joint custody or to one of the parents also referred to as sole legal custody. Physical custody refers to who shall live with the minor. The court may grant sole physical custody or joint physical custody depending on several factors.

However, this does not mean that when one parent has been granted physical custody of the minor, then the other parent is excluded from his or her own parental responsibility. Section 101 of the Children Act, 2022 stipulates that where a person who does not have the legal custody of a child but is entrusted with the care and control of the child, the person is under a duty to safeguard the interests and welfare of the child.

Custody can be granted to any of the following persons: –

  1. A parent;
  2. A guardian;
  3. A person who has applied for custody with the consent of the parent/guardian and has had actual custody of a child for not less than three years before making the application.However, as an exception when determining the application, the court may establish a shorter period of actual custody provided that a justifiable reason is given for issuance of such order; or
  4. Any other person who can show cause why the order should be made awarding the person custody.

As mentioned above, there are certain principles which the Court must consider when determining whether or not to issue a custody order. These include: –

  1. The best interest of a Child;
  2. The conduct and wishes of the parent/guardian;
  3. The ascertainable wishes of the relatives of the child;
  4. The ascertainable wishes of the child taking into account the child’s evolving capacity;
  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 persuasion of the Child;
  8. Whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether 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; and
  10. Any of the matters specified in section 95(2) of the Children Act, 2022 where the court considers such matters to be relevant in making of an order.

When either of the parents has been granted custody of the child, it is important to adhere to the orders issued by the court. Failure to adhere to the court orders may lead revocation of the custody order and the court shall make an order indicating who shall be granted custody of the child thereafter.

In the event where parents have entered into a custody agreement, it is highly important to consider the best interest of the child. If this is not addressed while drafting the agreement, such agreement may be invalid and therefore unenforceable.

Maintenance Order

A maintenance order is issued by a court directing a specific person to make payment, either lump sum or periodically for the maintenance of the child on specific terms which the court may consider appropriate.

It is presumed that the maintenance of a child shall be the joint duty and responsibility of both parents to maintain the child whether or not the parents are married to each other. Where there exist more than two or more guardians of a child, it is the duty of all the guardians to maintain the child whether jointly with the parents or not. In relation to custody, where there exist two or more custodians, it shall be the joint responsibility of the custodians to maintain the child.

Where a child has a step-parent or a presumed guardian, the court may make an 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. Simply, when a person assumes parental responsibility upon a child, they cannot just decide that they shall stop providing for the child since this is considered to be against the best interest of the Child.

However, the court is mandated to consider all the circumstances surrounding the case and be guided by these considerations when making a maintenance order such as: –

  1. The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the Court proposes to make an order, have or are likely to have in the immediate future;
  2. the financial needs, obligations, or responsibilities which each party has or is likely to have in the immediate future;
  3. the financial needs of the child and the child’s current circumstances;
  4. the income, if any, derived from the property of the child;
  5. any physical or mental disabilities, illness or medical condition of the child;
  6. the manner in which the child is being or was expected to be educated or trained;
  7. whether the respondent has assumed responsibility for the maintenance of the child and, if so, the extent to which, and the basis on which, he or she has assumed that responsibility, and the length of the period during which he has met that responsibility;
  8. whether the respondent assumed responsibility for the maintenance of the child knowing that the child was not his child;
  9. the liability of any other person to maintain the child; and
  10. the liability of that person to maintain other children.

It is important to note that a maintenance order shall remain in force until the child’s eighteenth (18) birthday. The court can also issue other substantive maintenance orders regarding the provision of education, medical care, clothing and housing and order for financial provision.

How are Maintenance Orders Enforced in Kenya?

Where a person has failed to comply with any provision contained in the maintenance order or has defaulted in issuing any payment specified under the order, the court may direct that an enquiry/enquiries be made to the defaulting party’s means including searching of his or her income, assets and liabilities. If the defaulting party is employed, the court may direct for the statement of means from his or her employer or auditors. This process is conducted in order to guide the court when considering enforcement of orders for maintenance or contribution.

Conclusion

The law provides clarity in matters concerning custody and maintenance and understanding the various circumstances and enforcement procedures is important. The best interest of a child should always be considered when discussing maintenance and custody of a child.

At JRO ADVOCATES LLP we continue to monitor the implementation of the law and provide first hand and prompt feedback in custody and maintenance advisory. For more information or queries, please contact our team of experienced advocates for any clarifications or appointments through +254113230047 or via email through info@jroadvocatesllp.co.ke

Author: Jocyline Omondi – Partner