Child Custody

Child custody is the legal framework that determines who has the right to care for and make decisions for a child following the separation or divorce of the parents, or in other circumstances where the child's care arrangements need to be formalised. In Kenya, child custody is governed by the Children Act, 2022, the Marriage Act, 2014, and Article 53 of the Constitution of Kenya, 2010 — which enshrines the best interests of the child as the paramount consideration in every matter concerning a child.

Advocates offering this service act for parents, guardians, and other family members in custody and access proceedings. Advocates handle applications for sole custody (where one parent has the primary right to care for the child and make decisions on their behalf), joint custody (where both parents share the care and decision-making), and shared care arrangements (where the child spends substantial time with both parents). Advocates also handle access (visitation) arrangements — including supervised access, indirect access (by telephone or video), and the management of access where there are concerns about the child's safety.

Advocates handle applications for child maintenance — the financial support that a non-resident parent is required to provide for the child's upkeep. Advocates assess the financial needs of the child (including food, housing, education, healthcare, clothing, and transport) and the financial capacity of the non-resident parent, and they pursue a maintenance order that is fair and adequate. Advocates also handle the variation of maintenance orders (where circumstances have changed) and the enforcement of maintenance orders (where the non-resident parent fails to pay).

Advocates act in cases involving the relocation of children — both within Kenya (where one parent wishes to move with the child to a different county or region) and internationally (where one parent wishes to relocate with the child to another country). Relocation cases are among the most difficult and emotionally charged matters in family law, and the court's approach is governed by the best interests of the child — considering the impact of the relocation on the child's relationship with the non-relocating parent, the reasons for the relocation, and the child's welfare in the proposed new location.

Advocates handle international child abduction cases under the Hague Convention on the Civil Aspects of International Child Abduction, to which Kenya is a party. Advocates act for parents whose children have been wrongfully removed to or retained in Kenya, and for parents whose children have been wrongfully removed from Kenya to another convention country. Advocates work with the Central Authority for Kenya (the Office of the Attorney General) and with counterpart lawyers in other jurisdictions to secure the prompt return of abducted children.

Advocates also handle guardianship applications — where a person seeks to be appointed as the guardian of a child whose parents are deceased, unavailable, or unable to care for the child. Advocates handle the adoption of children under the Children Act, including the preparation of adoption applications, the management of the adoption process through the adoption societies and the court, and the finalisation of the adoption order.

Advocates also act for children directly — through their guardians ad litem — in cases where the child's interests need to be independently represented. The aim is ensuring that the voice of the child is heard in every proceeding that affects them, in accordance with the Children Act and the United Nations Convention on the Rights of the Child.