RLB 402: FAMILY LAW

CECILIA MUTAVA
19ZAD104261

An essay answering the question - ‘How is child custody and parental responsibility
determined?’
Child custody is defined to be “so much of the parental rights and duties as relate to the

possession of the child “in Section 81 of the Children’s Act 2012. There are several instances

where child custody may come up. They include:

1. Upon divorce/ during the divorce process

When filing a petition for a divorce, one may seek for child custody and like all other aspects of

divorce, like all aspects of a divorce - including property division, child support, financial

division, and spousal support (alimony) -- child custody and visitation will either be decided by

agreement between the divorcing couple (usually with the help of attorneys and mediators) or

by the court.

2. When the parents are unmarried

At the point when a kid's folks are unmarried, the resolutions of most states necessitate that

the mother be granted sole actual authority except if the dad makes a move to be granted

guardianship. An unwed dad frequently can't prevail upon authority a mother who is a decent

parent, yet he can find ways to get some type of care and appearance rights. Child custody and

visitation will be resolved either through agreement between the child's parents, or by a family

court judge's decision.

3. Where non-parents would like custody

In some cases, people other than a child's parents may wish to obtain custody -- including

relatives like grandparents, aunts, uncles, and close family friends. Some states label such a

situation as ‘non-parental’ or ‘third-party’ custody while others like the United States of
America refer to the third-party's goal in these situations as obtaining ‘guardianship’ of the

child, rather than custody.1

Child custody can be divided into two: legal and actual custody. Legal custody 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.

Actual custody 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.

Legal and actual custody can either be joint custody or sole custody. Joint legal custody refers

to where both parents have legal custody, even though the child may be residing with either

parent. This is the ideal type of custody and arises where both parents are able to amicably

agree on their parenting rights.

Sole legal custody arises where one parent has custody conferred upon them by a court order.

It is usually awarded where the parent applying for custody can show that the other parent’s

presence can be dispensed with for reasons such as where the other parent is permanently

moving out of the county. Sole legal custody goes hand in hand with sole actual custody,

1
Thomson Reuters, ' How Child Custody Decisions Are Made' (FindLaw.Com 2019) <
https://www.findlaw.com/family/child-custody/how-child-custody-decisions-are-made.html> accessed 22 July
2021
meaning that the child permanently resides with one parent. The other parent may have

visitation rights.

Joint actual custody refers to where each parent has possession of the child for equal amounts

of time. Any person who is in actual possession of the child has a duty to safeguard the

interests and welfare of the child. In determining all matters relating to children’s custody, the

principle of the best interest of the child is the most important factor to be considered.

Interim custody refers to temporary custody awarded by the court, pending the final

determination of the custody application. The courts have power to make interim custody

orders which may be reviewed from time to time, varied or suspended. An interim custody

order does not exceed twelve (12) months

Section 82(3) of the Children’s Act 2001, lists who can be granted custody to include:

a. a parent

b. a guardian

c. any person who applies with the consent of a parent or guardian of a child and has had

actual custody of the child for three months preceding the making of the application

d. any person who, while not falling within paragraph (a), (b) or (c), can show cause, having

regard to section 83, why an order should be made awarding that person custody of the

child.

Custody of children of tender years

Section 2 of the Children’s Act2 defines child of tender years as a child under the age of ten

years. The case of K.M.M v J. I. L [2016] Eklr laid out the rule that custody of children of tender

years should be given to the mother, except where there are exceptional circumstances.

Judge M. W Muigai stated that “…a child of tender years’ best interests and welfare are where

legal custody is awarded to the mother barring extenuating circumstances that would prevent

the mother from providing protection and care of the child. Case law lends credence to the

proposition that in cases of a child of tender years less than 10 years as defined under Section

2(1) of the Children Act 2001, custody is granted to the mother.”

Section 83 of the Children’s Act sets out principles guiding the court in making a custody order.

The court must consider the following:

a. The conduct and wishes of the parent or guardian of the child

b. The ascertainable wishes of the relatives of the child

c. 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.

d. The ascertainable wishes of the child.

e. Whether the child has suffered any harm, or is likely to suffer any harm if the order is

not made,

f. The customs of the community to which the child belongs.

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Children’s Act Cap 141 Laws of Kenya 2001
 g. The religious persuasions of the child

h. 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.

i. The circumstances of any sibling of the child concerned; and of any other children of

the home, if any.

j. The best interest of the child.

Article 53 (2) of the Constitution provides that ‘A child’s best interests are of paramount

importance in every matter concerning the child’.

Section 4(2) of the Children’s Act also provides that ‘In all actions concerning children, whether

undertaken by public or private social welfare institutions, courts of law, administrative

authorities or legislative bodies, the best interests of the child shall be a primary consideration’.

The court is always guided by this principle while making a determination on which parent to

grant actual custody which means that in all custody, discussions and decisions are made with

the goal of fostering and encouraging the child’s happiness, security, mental health and

emotional development. Generally, it’s often in the best interest of the child to maintain a close

and loving relationship with both parents.

To achieve this standard several factors are usually considered by the decision making

authority. Such factors include but not limited to:

  the wishes of the child; if the child is old enough to capably express a reasonable

preference;

 the mental and physical health of the parents.

 any special needs a child may have and how each parent takes care of those needs;

 religious and/or cultural considerations;

 the need for continuation of a stable home environment, support and opportunity for

interaction with members of the extended family of either parent such as grandparents;

 interactions and interrelationship with other members of household, adjustments to

school and community;

 the age and sex of the child;

 the existence of a pattern of domestic violence in the home, parental use of excessive

discipline or emotional abuse; and

 evidence of parental drug, alcohol or child abuse.3

Once the courts have taken into consideration everything above, then they will make a custody

order. Usually, the court is guided by the official report made by a Children’s officer.

3
A Wanga, “9 BEST INTEREST FACTORS OF THE CHILD IN KENYA” (mmsadvocates.co. keJuly 22, 2019)
<https://mmsadvocates.co.ke/9-%EF%BB%BFbest-interest-factors-of-the-child-in-kenya/> accessed July 23, 2021.
PARENTAL RESPONSIBILITY

Section 23 of the Children’s Act4 defines parental responsibility as all the duties, rights, powers,

responsibilities and authority which by law a parent of a child has in relation to the child and

the child’s property in a manner consistent with the evolving capacities of the child.

The duties include the duty to maintain the child and provide them with food, shelter, medical

care, education, clothing and the duty to protect the child from neglect, discrimination and

abuse. This is enshrined in Section 23(2) of the Children’s Act.

To whom does parental responsibility attach?

In accordance with Section 24 of the Children’s Act, one shall have parental responsibility:

 Where a child’s father and mother were married to each other at the time of his birth,

they shall have parental responsibility for the child and neither the father nor the

mother of the child shall have a superior right or claim against the other in exercise of

such parental responsibility.

 Where a child’s father and mother were not married to each other at the time of the

child’s birth and have subsequently married each other, they shall have parental

responsibility for the child and 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.

 Where a child’s father and mother were not married to each other at the time of the

child’s birth and have not subsequently married each other—

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Children’s Act Cap 8 Laws of Kenya 2001
 (a)the mother shall have parental responsibility at the first instance;

(b) the father shall subsequently acquire parental responsibility for the child in

accordance with the provisions of section 25.

 More than one person may have parental responsibility for the same child at the same

 A person who has parental responsibility for a child at any time shall not cease to have

that responsibility for the child.

 Where more than one person has parental responsibility for a child, each of them may

act alone and without the other (or others) in that responsibility; but nothing in this Part

shall be taken to affect the operation of any enactment which requires the consent of

more than one person in a matter affecting the child.

Parental responsibility is extinguished once the child attains the age of 18 however it may be

extended by the court beyond the date of the child’s eighteenth birthday if the court is satisfied

that there are sufficient reasons to warrant the extension. An application for extension can be

made by a parent, a relative of a child, any person who has parental responsibility for the child,

the Director of Children’s Services or by the child himself. This is provided for in Section 28 of

the Children’s Act.