You meet this tall, dark and handsome man through mutual friends. He proposes, you get married in a flashy wedding and a year later, the relationship goes sour. Two weeks after breaking up, you find out you are pregnant, with twins. Nine months later, a baby boy and girl are born, and a custody battle ensues. What do you do?
The Children’s Court is filled with maintenance claims and custody battles between parents who cannot decide on how to share parental responsibilities for their issues. Many cases are instituted to force the ‘man’ to take care of his offspring. As a result of the backlog in the courts, the process could take months if you are lucky. The process is costly, exhausting and frustrating. Most of these cases can easily be resolved before escalating to court. Parents can negotiate and draw up a parental responsibility agreement and avoid the costs, time and energy spent in the so-called “corridors of justice.”
What is Parental responsibility?
Parental responsibility is described in section 23 of the Children’s Act as all the duties, rights, powers, responsibilities and authority which a parent has in relation to 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. In a nutshell, it is the responsibility to provide for the financial, physical, mental and emotional needs of the child.
Section 20 of the Children Act prescribes a penalty for infringing the rights of a child. It states that such a person shall be liable to a term of imprisonment up to twelve months, or to a fine not exceeding fifty thousand shillings, or both. Section 127 also provides for a penalty for cruelty to and neglect of children. Such a person commits an offence and is liable to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding five years, or to both.
Who has Parental responsibility?
Article 53 of the Constitution of Kenya states that every child has the right to parental care and protection, which includes equal responsibility of the parents to provide for the child, whether they are married to each other or not.
The Children’s Act provides for parental responsibility as follows.
- Parental responsibility where a child’s parents were married to each other at the time of his birth. – Section 24(1) of the Children’s Act provides that where the parents were married at the time of the child’s birth, the parents automatically acquire equal parental responsibility for the child.
- Parental responsibility where a child’s parents were not married to each other at the time of the child’s birth and have subsequently married each other – In this case, the parents shall both have parental responsibility for the child. They therefore have equal rights in providing for the wellbeing of the child.
- Parental responsibility where the parents of the child are not married – Section 24(3) provides that where the parents are not married, the mother assumes parental responsibility in the first instance, and the father could assume responsibility through a court order or a parental responsibility agreement. This however contradicts article 53(1) (e) of the Constitution which states that every parent has equal responsibility, whether married or not. This contradiction was reiterated in the case of Zak & Another vs. The Attorney General & Another (2013) where the court held that section 24 (3) of the Children Act was unconstitutional for placing all responsibility of a child born out of wedlock on the mother.
- Parental responsibility where the parents are cohabiting for not less than twelve months – Section 25(2) of the Children’s Act states that where a child’s parents have cohabited for a period or periods which amount to more than twelve months, they shall have acquired parental responsibility. It also states that where the father has acknowledged paternity of the child or has maintained the child, he shall have acquired parental responsibility for the child.
- Parental responsibility after divorce – Section 24(5) of the Children’s Act states that a person who has parental responsibility for a child at any time shall not cease to have that responsibility for the child, even after divorce. Both parents are expected to provide for the children after divorce and invariably, courts take the best interest of children into consideration while making on order for custody or maintenance.
Custody of Children
The question of custody for children in cases arises where parties are not married, after divorce, or death of both parents. Section 81 of the Children’s Act defines custody as the parental rights and duties that relate to the possession of the child.
Parents could either be granted joint legal and actual custody, or, joint legal custody and actual custody to one parent. There are also situations where one party is granted legal and actual custody, also known as sole custody. This is where one party is harmful to the wellbeing of the child.
Types of Custody
- Legal custody – Legal custody is the parental rights and duties in relation to child. It is the right to make decisions relating to the welfare of the child. The rights included in legal custody are all the duties, rights, powers, responsibilities and authority which a parent has in relation to 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.Actual custody- Actual custody means the actual possession of a child. It is also known as physical custody.
The rationale for granting one parent physical custody is for the stability of the child. This is so that the child is able to attend school without jumping from one home to another. Where one parent has been living with the child, the courts would be hesitant to grant the other party physical custody of the children, as it would be disruptive to the children. In such a situation, the mother is granted actual custody and the father legal custody and visitation rights.
- Joint custody – Parents could either be granted joint legal and actual custody, or, joint legal custody to both parents and actual custody one parent.Where parents are granted joint legal and actual custody, they are mandated to share the parental responsibilities. They will both make decisions relating to the child and will share physical custody.
The case of J.K.N v H.W.N (2019) is an example of joint legal and custody. The appellant went to court seeking legal and actual custody of his two children after divorce. The parties were ordered to prepare a Joint Custody Agreement. This is an agreement between the parents stating when each party shall have the physical custody of the children; when and how the exchanges will happen; who will have physical custody during holidays, vacations and school breaks; childcare arrangements; education and extra-curricular activities; religious issues; and health care issues.
Where parents are granted joint legal custody, both parents are involved with the care of the child, and decisions relating to the child. However, only one person will have physical custody of the child. This however does not ban the other party from visiting the child. This situation could occur where it is impossible for both parents to acquire actual custody, for example, where the parents live in different countries. This was the case in K.M.M v J. I. L (2016). The mother was living in Dubai while the father was in Kenya. The court ruled that both parties will share legal custody and the mother will have physical custody.
Another case where parties were granted joint legal custody is the case of H.G.G v G.G.G (2018). Both parties were granted legal custody while the mother was granted physical custody. The court’s reasoning was that the children had been living with their mother all their life and their father providing necessary support in education and welfare. It was held that it would be disruptive for the respondent to take physical custody of the children.
Evidently, where parties are granted joint legal custody, both parties are responsible for the well-being of the children. In as much as one party has physical custody, parties are encouraged to ensure that they visit the child as this enhances the relationship with the parent.
- Sole custody – Where it is declared that a party is unfit to raise a child, the courts will grant one party actual and legal custody. This would happen where one party is harmful to the wellbeing of the child.
Considerations for granting custody
Part 7 of the Children’s Act provides for the considerations the courts regard before making an order. The Courts will look at:
- the wishes of the child concerned with reference to the child’s age and understanding;
- the child’s physical, emotional and educational needs;
- the likely effect on the child of any change in circumstances;
- the child’s age, sex, religious persuasion and cultural background;
- any harm the child may have suffered, or is at risk of suffering;
- the ability of the parent to provide for and care for the child;
- the ability of any person or institution to provide any special care or medical care for the child; and most importantly,
- the best interest of the child.
Special considerations for granting custody
- Custody of minors-The general principle regarding custody of minors and children of tender years is that unless there are peculiar and special circumstances, the mother will be granted physical custody. Section 2 of the Children’s Act defines a child of tender years as a child under the age of 10 years.In J.K.W v M.A.A (2015), the court held that where custody of a child of tender years is in issue, the mother should have the custody unless exceptional circumstances exist to disqualify the mother from having the custody. The exceptional circumstances include the mother being unsettled, where the mother has taken a new husband, where she is living in quarters that are in deplorable state, or where her conduct is disgraceful and/or immoral.
Although the case above places remarriage as an exceptional circumstance that would make the mother an unsuitable parent to take care of the girl, the case of M.A.A v A.B.S (2018) held that remarriage itself is not a sufficient reason to disqualify a mother from acquiring custody. It must be shown that the remarriage is incompatible with the welfare of the child.
Section 4 of the Subordinate Courts (Separation and Maintenance) Act enables a woman to seek custody for a child below 16 years. The rationale is that a mother is considered the most suitable parent to take care of the child, as they know their interests and needs.
- Custody of girls – With regard to girls, the general rule is that it is better for little girls to be raised by their mother, unless there are exceptional cases. This was held in the case of Githunguri v Githunguri (1979).
The Judiciary recently issued a press release concerning a judgement on the custody of a young girl at Mwingi Law Courts. A video showing the girl crying and clinging to her father on judgement day had caused a media frenzy. It is alleged that her mother left when she was one-and-a-half years old, and her father raised her to date. In 2016, the mother resurfaced and began demanding for custody of the child. She then took the father to court. The parties entered a consent where the parties agreed to share custody. The court ruled according to the consent where the mother would have physical custody. People took to social media to comment on the clear disappointment of the girl.
The law states that the child’s best interests are paramount when granting custody. It is essential for a girl to be raised by her mother, as she is in a better position to understand her physical, emotional and mental needs. It is however important for Courts to ensure that they take all the circumstances of the case into consideration, and make a sound and reasonable decision that is for the best interest of the child. If a father of a girl is best suited to give parental care where he has proved he is capable, has been taking care of the girl and there is no impediment, in my personal view, there is no reason why custody should not be granted to the father.
Maintenance of children
Section 91 of the Children’s Act provides that a party may apply for a maintenance order to compel the other party to pay maintenance for the child. The amount of money granted will depend on the ability of the parents and the needs of the child.
In the case of D K M v R M N (2018), the father was ordered to pay Kshs. 15,000/= monthly while the mother provides Kshs. 5,000/= per month. In this case, the child was a minor and both parties were ordered to provide for the child according to their capabilities.
In the case of S M W v E W M (2019), the father was ordered to pay a monthly maintenance of Kshs. 3000. This amount was based on the income of the father. In another case of P K M v R P M (2017), the father was ordered to pay a monthly maintenance of Kshs. 150,000 due to the lifestyle he had accustomed his family to. Therefore, the amount that is granted will always depend on the circumstances of the case.
Every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. It is important for parents to adequately provide for their children and to safeguard and promote the rights and welfare of the child. This includes financial, mental and emotional support.
The current Act needs to be amended to conform to the Constitution. There is a proposed Children’s Bill, which is yet to be tabled in Parliament. It amends the current Act, with one of the amendments being that both Parents are equally responsible for their children. This is essential as it will ensure that unmarried men are no longer immune to parental responsibility.#knowyourlawkenya
- Article 53, Constitution of Kenya 2010.
- Section 23, 24, 25, 26,76,83,84 Children Act (Act No. 8. Of 2001).
- JKN v HWN  Civil Appeal no.40 of 2014 eKLR.
- H G G v G G G  Eklr Divorce Case No. 46 of 2018.
- M.M v J. I. L  eKLR Children Court Case 158 of 2015.
- Mehrunisa v. Pravez (1982-88) 1 KAR 18.
- Zak & Another vs. The Attorney General & Another (2013) eKLR.
- K.W v M.A.A  eKLR Civil appeal No. 68 of 2015 at Migori.
- Githunguri v Githunguri  eKLR Civil Appeal 30 of 1978.
- M A v A B S  eKLR Civil Appeal No. 32 of 2017.
- D K M v R M N (2018), Civil Appeal No. 35 of 2017.
- S M W v E W M  eKLR Civil Appeal No.41 of 2017.
- P K M v R P M  eKLR Civil Appeal No. 166 of 2015.
- The Children Bill first draft http://www.childrenscouncil.go.ke/images/documents/Acts/The-Children-Bill-First-Draft—16th-June-2017.pdf on 22/01/2020.