Child Custody and Maintenance

Child custody refers to the rights and duties of a parent in relation to the possession of a child. Custody is broadly classified into actual and legal custody. Legal custody is custody that is conferred upon a person by an order of the court commonly referred to as a custody order while actual custody also known as physical custody, is the actual possession of the child whether or not that possession is shared with one or more persons. In addition to that, custody may be joint where it is shared between the parents; sole where it is granted to one parent to the exclusion of the other or sole custody with access where one parent has actual custody while the other parent only has a right of visitation without actual custody. In recent years, there have been a lot of child custody and maintenance battles especially among separated and divorced couples.

This article aims to give a breakdown of the guiding principles in child custody and maintenance matters. The first part of the article will focus mostly on child custody with the other half tackling child maintenance. The Children’s Act is our main reference point when it comes to matters of child custody and maintenance. First and foremost, in determining any issue that relates to a child, the court must be guided by the principle of the best interest of the child as stipulated under various legal instruments.

Section 83 of the Children’s Act provides for the principles to be applied in making a custody order to include inter alia;

1. The conduct and wishes of the parent or guardian of the child;
2. The ascertainable wishes of the child, the relatives of the child or any foster parent of the child;
3. The customs of the community to which the child belongs as well as the child’s religious persuasion;
4. Whether there is a likelihood of harm being suffered by the child if a custody order is not made;
5. The circumstances of any sibling of the child concerned, and of paramount importance;
6. The best interest of the child.

It is worth noting that custody may be granted to the parents of the child, his/her guardian or to any person who applies for custody with the consent of a parent or guardian as long as the person had actual custody of the child for a minimum period of three months prior to making the application. The judicial system in Kenya has leaned towards maternal preference in relation to the custody of children of tender years mostly based on the presumption that mothers are better caregivers and are more attentive to the needs of the child. Nonetheless, the court may revoke a custody order where it is proven that the mother is an unfit parent due to financial incapacity or where it is demonstrated that the mother is a threat to the child for instance due to drug addiction. The court ought to determine the new custodian of the child before making such revocation. A child cannot be removed from the custody of a person who has lived with them for three years whether continuously or not against the custodian’s will unless it is by leave of the court.

Where a court makes a custody order it shall in addition give directions regarding rights of access to the child as well as maintenance of the child. A custody order made in respect of a child and any order in respect of access or maintenance of a child who is subject of a custody order, shall cease to have effect when the child attains the age of majority. However, the court may extend the order past the majority age on application of a party. Finally, section 174(1) of the Penal Code makes it an offence for any person to deny possession of a child to a parent or guardian who has lawful care or charge of a child under the age of fourteen years.

Child maintenance on the other hand involves a more complex procedure compared to the procedure used for application of a custody order. It is intertwined with parental responsibility which connotes all the duties, rights, powers, responsibilities of a parent in relation to a child. The duties include the duty to maintain the child and in particular, provide the child with all the basic needs with adequate capacity.

The Constitution notes that every child has 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 or divorced. The following presumptions apply in relation to maintenance of a child;

1. There is a joint responsibility of maintenance where both parents of the child are alive and were married to each other at the time of the child’s birth.
2. There is a joint responsibility of maintenance where although the parents of the child are not married to each other, the father has acquired parental responsibility for the child.
3. There is a joint responsibility of maintenance where two or more guardians or custodians have been appointed in respect of the child.
4. There is joint responsibility where a residence order is made in favor of more than one person.

Any parent, guardian or custodian of the child may apply to the court to determine any matter relating to the maintenance of the child. The court may also make a maintenance order on its own motion. The court is guided by the following considerations in making a maintenance order:

1. The income or earning capacity, property and other financial resources of the party in whose favor the order is made
2. The financial needs, obligations or responsibilities of each party
3. The financial needs of the child and the child’s current circumstances
4. The income or earning capacity of the child if any
5. Any physical or mental disabilities, illness or medical condition of the child
6. The circumstances of any of the child’s siblings
7. The customs, practices and religion of both the parties and the child
8. The liability of any other person to maintain the child
9. Whether the other party assumed responsibility for the maintenance of the child, to what extent and the basis on which he assumed that responsibility
10. Whether the other party assumed responsibility for the maintenance of the child knowing the child was not his or knowing he was not legally married to the mother of the child

The court may order that maintenance money be paid either through periodic payments or in lumpsum as the court deems fit. Any person in whose favor a maintenance order has been made may apply to the court for enforcement of the order where the other party has defaulted or failed to comply with the provisions of the order. The court in such instances may make an order of specific performance in respect of any maintenance monies to be paid. Court may issue a warrant of distress on the respondent’s property or order the detention, attachment, preservation or inspection of any property of the respondent. The court may also make an order of injunction to restrain the disposition, wastage or damage of any property belonging to the respondent. Finally, the court may order the committal of the defaulter to a civil jail for a period not exceeding one month if the default is persistent and willful.

A maintenance order may be revoked where it is shown that the person in whose favor the order was made is not a fit or proper person to receive money on behalf of the child; is dead, incapacitated or has become of unsound mind; has been declared bankrupt, has misappropriated, misapplied or mismanaged any maintenance monies paid to him for the benefit of the child; has been imprisoned or has left the jurisdiction of the court for an indefinite period. It is important to note that once proceedings for the maintenance of a child have been commenced under the Children’s Act or any other Act, no subsequent or other proceedings with respect to the maintenance of that child may be commenced under any other Act without the leave of the court.

Legal advice is essential when dealing with custody and maintenance of a child in Kenya. Talk us to help you understand, assess and break down this concept through info@anyanzwajsadvocates.co.ke

Provision for Beneficiaries in a Will in Kenya

The Law in Kenya provides that a Testator has complete testamentary freedom except that you have to provide reasonably for all beneficiaries. The Testator need not be fair, but provide reasonable provision for the beneficiaries.

Testators must reasonably provide for beneficiaries, if they do not, then on the application by or on behalf of a beneficiary, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will is not such as to make reasonable provision for that Beneficiary, order that such reasonable provision as the court thinks fit shall be made for the beneficiary out of the deceased’s net estate.

Reasonableness depends on the circumstances of the matter as each case stands on its own facts. The court shall have regard to certain circumstances prior to making this order such as the nature and amount of the deceased’s property, the relationship between the beneficiary and the deceased, the existing and future means and needs of the beneficiary, the existing and future means and needs of the beneficiary among others.

What happens if a beneficiary dies?

In this case, the gift is said to have failed, hence the gift will be handled under Intestate succession. A person is deemed to die intestate in respect of all his free property of which he has not made a will which is capable of taking effect.

What happens when the Will does not provide for certain assets of the Testator?

In this case, the specific assets not provided for under the Will, shall be administered using intestate succession, which would be a cumbersome process, hence it is always advisable for a Testator to include a Residuary clause in the will.

A residuary clause in a will directs the disposition of property not provided for under the will.

Is it possible to will a property that is jointly owned?

Yes, it is possible to will a jointly owned property, however this should be provided for in the will while recognizing the survivorship clause, which provides that the survivor takes it all, automatically without going to court. It is important to provide for this, just in case, the Testator outlives the other joint owner, then they can will it to a certain beneficiary.

How do you cater for minors in a Will?

A minor cannot hold property, hence to cater for a minor in a Will, a Trustee can hold the assets on behalf of the minor until they turn the age of majority or until a certain age that the Testator stipulates in the will.

How then do you validate a will?

The executor named in the will, has to file the same in court to have the will validated, through a grant of probate. The court will gazette the same, to allow for any objections on the will prior to its confirmation.

Some of the objections that can be made in respect of a will are: lack of capacity of the Testator, forgery; fraud; improper witnessing. The onus to prove the said allegations lies on the objector of the Will on a balance of probabilities. In the event that the court finds the will to be competent, the court will then issue a grant of probate, have it confirmed and the court will distribute the Estate in accordance with the wishes of the Testator.

Please contact us if you require further advise on the above subjects or require us to draft a will through info@anyanzwajsadvocates.co.ke