Child custody and maintenance in Kenya disputes can be overwhelming, emotionally draining, and legally complex. Many parents struggle with unfair agreements, lack of clarity on their rights, and the fear of losing access to their children. If you’re facing such challenges, you’re not alone.
At F.M Muteti & Company Advocates, our experienced family lawyers have helped countless clients navigate these difficult situations with expert legal guidance. This comprehensive guide addresses the most pressing concerns—who gets custody, how maintenance is determined, what legal steps to take, and how to protect your child’s best interests. Let us provide the clarity and support you need to make informed decisions.
What are the Common FAQs on Child Custody and Maintenance in Kenya?
We at F.M. Muteti & Co. Advocates are committed to firmly represent your interests. In furtherance of our commitment, our Family Law Department has prepared the following frequently asked questions on child custody and maintenance.
What is Child Custody?
This refers to the legal rights and responsibilities a parent or guardian has towards a child, such as decisions about the child’s affairs including but not limited to education, healthcare etc.
Normally custody arises where the parents of the child are separated, do not live under one household or in cases of divorce.
Who can be granted Custody of a Child?
Parents, guardians as well as any person who applies with the consent of a parent or guardian of the child.
Do mothers have an upper hand over fathers in matters of child custody?
In the previous legal regime, Courts favored mothers over fathers in award of custody of a Child especially where the child was of tender age. This practice is no longer applicable as the principle of the best interests of the child is the paramount consideration in children matters, a position that was emphasized by Justice Ngugi’s decision in Civil Appeal No. 40 of 2014 – JKN v HWN.
Types of Child Custody
- Actual Custody- Also referred to as Physical custody, a party granted actual custody has possession of the child and gets to live with the child.
- Legal Custody – Refers to legal power to make decisions regarding a child, usually conferred by an order of a Court.
- Joint Custody- Where parental responsibility is shared between the parents or guardian.
- Sole Custody – Where one parent is granted both legal and physical custody of the child by an Order of a Court.
Some of the key factors that Courts consider in Custody matters
- The best interest of the child;
- The conduct and wishes of the parent or guardian of the child;
- The ascertainable wishes of the child taking into account the child’s evolving capacity. The Court may order the Child to be presented in Court in a bid to ascertain the wishes of the child.
- Whether the child has suffered any harm or is likely to suffer any harm if the order is not made;
- The living conditions of parties;
- The circumstances of any sibling of the child concerned, and of any other children of the home, if any;
- Children’s Officer’s Report/ Welfare Report– This is a report by a Children officer that outlines recommendations to the Court as to the best interests of the child based on the circumstances of the child which are ordinarily drawn from interviewing the child, parents or and/ or other relevant persons and a physical visit where applicable.
- Any other special and/ or relevant circumstances.
What is Child Maintenance?
This is the contribution of a parent or legal guardian that caters for the need of a child such as healthcare, school fees and school related expenses, housing, clothing, entertainment etc.
Article 53 1(e) provides that children have a 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.
Some of the key factors that Courts consider in awarding maintenance orders:
- The income or earning capacity, property and other financial resources of parties;
- The financial needs, obligations, or responsibilities which each party has or is likely to have in the immediate future. To ascertain this aspect, the Court may order parties to file an Affidavit of means that outlines their income as well as their expenses by way of an Affidavit / Statement of Means that is sworn by the parties or such other party as the Court may direct.
- Age and current needs of the child;
- Any special conditions of the child;
- Any previous contributions made for the maintenance of the child and, if so, the extent;
- The liability of any other person to maintain the child;
- The liability of a party to maintain other children.
What is the legal procedure for obtaining custody or child maintenance in Kenya?
Filing a suit by way of a Plaint and/ or Application in the children Court seeking for a maintenance Order or Custody order as pertains the child.
What is the Primary governing law on child custody and maintenance?
Article 53 (1e) & (2) of the Constitution of Kenya in conjunction with the provisions of the Children Act, 2022.
What is the procedure of enforcing Maintenance Orders?
Maintenance Orders are enforceable in the same manner as the execution of any other Orders of the Court under the Civil Procedure Rules, 2010.
What are the possible out of Court measures in child custody and maintenance?
- Pursuing mediation
- Voluntary Mediation – Where the parties would like to avoid litigation, they can agree to engage a certified and licensed Mediator who then presides over the child custody or maintenance issues;
- Court Annexed Mediation- Where the Court refers the suit to mediation
b) Entering into a binding Parental Responsibility Agreement that speaks to the custody and maintenance of the child
How long to custody or Child maintenance matter generally take?
The turnaround time for children matter is an average of six (6) months, subject to the Court’s schedule and diary as well as the issues in the suit. However, Courts are generally committed to expeditiously handle children matters, in line with the principle of the best interests of the child.
Our Family Law Department has handled a myriad of child custody and maintenance matters with admirable record of success. Having an Advocate on record ensures a compelling case is presented to the Court and increases the chances of the issuance of the desired maintenance and/ or custody orders.
