When parents separate or get a divorce, one of the biggest questions is who will get full custody of the child. Contrary to popular belief, a child does not automatically "belong" to the mother by default, although this is what happens more often.
As it turns out, the Kenyan law is categorical that a child belongs to both parents equally, regardless of the parents' relationship status, meaning custody decisions are only made with the child's best interests in mind.
According to city lawyer Danstan Omari, a simple but legal way to look at the custody issue is to look at it from a company perspective.
“Section 101 of the Children’s Act looks at a child like a company with shareholding. The mother has 50 per cent shares, and the father has 50 per cent shares. So a parent cannot say that that is your child alone," Omari explained.
In the event of a separation, it goes without saying that a child cannot be in two places at once. So how does the court decide who should have custody of the child? The answer lies in Section 103 of the Children's Act, which guides the court in assessing various key factors centering around the child's welfare.
How the Court determines Custody
Parent's conduct
One of the most important factors the court considers is the conduct of each parent as far as the child is concerned. This essentially entails the behaviour, care and emotional support provided by each parent, which weighs heavily in the court's decision.
Community/Relatives' Take
Another little-known but crucial factor is the community's opinion of a parent. The community and relatives have the right to comment on a parent's ability to have full custody of a child since they are familiar with the parent to some extent and have the ability to state what they know in relation to whether an individual is a fit parent.
Child's wishes (Under certain conditions)
The child's wishes are also considered, as the Children's Act recognises that children above 11 years can soberly express their preference.
“The wishes of a child are fundamental. You take into account the child's evolving capacity. Children above 11 years are asked who they would rather live with, although their opinions are not final. A court can ignore that opinion if it is contrary to the court’s interest," Omari explained.
Child's Safety
Another factor considered by the court is a parent's ability to keep the child out of harm's way. The court will examine whether the child has suffered any harm in the care of either parent, as well as the potential for future harm.
This includes assessing the risks of physical, emotional and psychological abuse.
Cultural Practises
Although a rarity in modern times, cultural practices can also come into play in guiding what is deemed to be in the best interests of the child.
For example, a parent who is seen as alienating the child from their culture, rejecting traditional practices, for instance, may be disadvantaged in court if the court believes the child's best interests are tied to their cultural upbringing.
Parents' Capacity to Provide
While this one is self-explanatory, the court will also look at a parent's ability to provide basic services like food, shelter, education, healthcare and so on to determine whether they are fit to hold full custody of the child.
Siblings
In some cases, the child's siblings will be taken into consideration since the court tries as much as possible to keep siblings together unless it is in the best interest of the child to be separated.
Ultimately, the court weighs these factors to decide which parent will have custody and care and control, meaning the primary guardian. It also leans on these factors to set the terms of access, including whether the child may spend overnight visits with the other parent.
