When relationships end, the most delicate and often emotionally charged matter is determining the care and custody of children. In Kenya, child custody is guided by the Children Act, 2022, which places the best interests of the child above all else.
What Is Child Custody?
Child custody refers to the legal right to make decisions about a child’s upbringing and to have physical care and control over them. Custody can be awarded to one parent (sole custody) or shared between both parents (joint custody), depending on the circumstances.
Types of Child Custody in Kenya
The courts recognize several forms of custody:
- Legal custody – The right to make major decisions about the child’s welfare, including education, healthcare, and religion.
- Physical custody – Refers to where the child lives on a day-to-day basis.
- Joint custody – Both parents share legal and/or physical custody.
- Sole custody – One parent is granted full custody; the other may be given visitation rights.
What the Court Considers
When deciding custody, Kenyan courts primarily consider what arrangement best serves the child’s emotional, physical, and psychological needs. Factors considered include:
- The age and gender of the child
- The child’s wishes (depending on their age and maturity)
- The parental ability to provide proper care
- The child’s relationship with each parent
- Stability of the home environment
- Any history of neglect, abuse, or violence
The law does not automatically favor mothers over fathers. Both parents have equal rights and responsibilities unless proven otherwise in court.
Custody for Unmarried Parents
Unmarried fathers do not automatically have parental responsibility under Kenyan law. However, they can acquire it by:
- Entering into a Parental Responsibility Agreement with the mother, or
- Applying for it through the Children’s Court
Once granted, the father can participate in custody and access decisions just like a married or divorced parent.
Modifying Custody Orders
Child custody orders are not permanent. Either parent can apply to vary or discharge an order if circumstances change — for example, if one parent relocates, remarries, or is no longer fit to care for the child.
How Nkatha and Company Advocates Can Help
Navigating child custody can be overwhelming, especially when emotions run high. At Nkatha and Company Advocates, we walk with you every step of the way — whether you’re seeking custody, responding to a custody claim, or modifying an existing order.
We believe in advocating for both parents while keeping the child’s best interest at the heart of every case. Let us help you build a future that safeguards your child’s well-being and your parental rights.