THE LAW
In Kenya, Case Law is such that the interest and welfares of the child are a priority. The assumption is that the suit parties are not amicable. Elements as to the custody and or maintenance, visitation and parental reasonability, the actual and legal threshold for welfare form basics of any discussions as for agreements. Note that this can be an MOU which then could be adopted as Court order in the event that things stall down once again. Even then an out of court settlement is preferable.
In light of the foregoing we proceed with an analysis of the legal position of the following:
- Custody;
- Maintenance;
- Visitation;
- Parental responsibility.
The Law provides that parental responsibility entails 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.[1] The duties that parents have over the child(ren) include: the duty to maintain the child and in particular to provide the child with-adequate diet; shelter; clothing; medical care including immunization; and education and guidance. A parent also has the duty to protect the child from neglect, discrimination and abuse; the right to give parental guidance in religious, moral, social, cultural and other values; determine the name of the child; appoint a guardian in respect of the child; receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child; arrange or restrict the emigration of the child from range or restrict the emigration of the child from Kenya; And upon the death of the child, to arrange for the burial or cremation
Custody
There is need to differentiate actual custody and legal custody. For this we consider the possible scenarios of custody. We have actual custody and legal custody. Both parents of a child have equal rights to apply for custody of the child. However in case on minors, the mother takes first priority unless there is reason to show otherwise as to exclude her from having custody the child. Typically the court in denying any parent custody would consider whether one has failed, forfeited, and conducted oneself in an immoral or cruel way.[2]
Legally it is difficult to hold that a parent would be denied custody regardless of gender.[3] The need to consider the different aspect that’s the parents would normally play in a child’s life are paramount.[4] The role of a father or family in the upbringing of the child cannot be ignored. Certainty where there is effort to be involved in the livelihood of the child, this go to a great deal to establish the more reasons as to why custody should not be denied.
Maintenance
One may seek an order to prompt a specified person to make payment for the maintenance of a child. To this end courts determine such disputes through an examination of various factors. Generally the following presumptions regarding maintenance of a child are considered:-
- The parents of a child were married to each other at the time of the birth of the child and are both living.
- Two or more guardians/custodians of the child have been appointed, the duty to maintain the child shall be their joint responsibility. Whether acting in conjunction with the parents of the child or not.
- There is a residence order made in favour of more than one person, it shall be the duty of those persons to jointly maintain the child.
- That person is responsible for paying for their education and training beyond the person’s 18th birthday.
- The person is disabled and requires specialized care which will extend beyond the person’s eighteenth birthday.
- Or the individual is suffering from an illness or ailment and will require medical care which will extend beyond the person’s eighteenth birthday.
- Any other special circumstances exist which would warrant the making of the order.
- The parents of a child were not married to each other at the time of birth of the child and have not subsequently married, but the father of the child has acquired parental responsibility for the child.
- That person is responsible for paying for their education and training beyond the person’s 18th birthday.
- The person is disabled and requires specialized care which will extend beyond the person’s eighteenth birthday.
- Or the individual is suffering from an illness or ailment and will require medical care which will extend beyond the person’s eighteenth birthday.
- Any other special circumstances exist which would warrant the making of the order.
- The court has power to make a maintenance order, whether or not the child’s parent has filed for divorce or separation.
Nonetheless, court has power to make a maintenance order, whether or not the child’s parent has filed for divorce or separation.
Generally, the parent without actual custody is the one who provides this form of support. There are several options on this ambit. The justification is that maintenance is a right of the child. Therefore it is the duty of the parents to ensure that a child is well maintained in accordance with the social class of the parents.
Nonetheless if there is claims as to not meet these obligations the courts would require one to show cause as to why these expectations should not be so ordered. For this, the affidavit of means is presented to court to exonerate such claims. The court will then assess the positions presentation so as to arrive to an informed decision. The maintenance of a child is presumed on the need basis rather than want. Factors such as;
- The income or earning capacity, property and other financial resources of the parties.
- The financial needs, obligations, or responsibilities which each party has or is likely to have.
- The financial needs of the child and the child’s current circumstances.
- The income or earning capacity, if any, property and other financial resources of the child.
- Any physical or mental disabilities, illness or medical condition of the child.
- The child’s education or training.
- The circumstances of any of the child’s siblings.
- The customs, practices and religion of the parties and the child.
- Whether the stepparent has assumed responsibility for the maintenance of the child. If so, the extent to which and the basis of that responsibility.
- The liability of any other person to maintain the child.
- The liability of that person to maintain other children.
There is legitimate expectations as to what maintenance should be. It is then important to establish what constitutes maintenance in the legal sense. Given the sentiments of the parents nor the child would not suffice as to independently determine what maintenance is.
This Article is intended to be for informational purposes merely. For any queries or for clarifications, please contact us on info@atandiadvocates.africa
[1] Section 23 Children’s Act
[2] Re Agar Ellis (1883) 24 Ch. D317
[3] Section 81 Children’s Act.
[4] Ibid 83