Nairobi, Kenya – Child custody cases remain among the most delicate disputes handled by Kenyan courts, often arising in the wake of divorce, separation, or disagreements between parents on raising their children. At the heart of every decision lies a single guiding principle: the best interests of the child, a standard firmly anchored in the Constitution of Kenya 2010 and the Children Act, 2022.
Kenya’s law recognises different forms of custody. Legal custody grants a parent the right to make key decisions over a child’s education, health, and welfare. Actual custody relates to the child’s day-to-day living arrangements and care, while joint custody allows both parents to share responsibility. In certain circumstances, where neither parent is fit, custody may be awarded to a third party, such as a relative.
The Children Act spells out factors that courts must weigh before issuing a ruling. Section 83 of the Act highlights considerations such as the child’s age, emotional and developmental needs, and general welfare. Courts have traditionally awarded custody of very young children to mothers unless there are compelling reasons not to do so. However, recent jurisprudence shows a shift towards shared parenting, recognising the vital role both parents play in a child’s life.
Filing for custody begins at the Children’s Court, where a parent must lodge a petition supported by affidavits and evidence showing capacity to care for the child. The process often involves mediation sessions, as courts encourage amicable settlement before moving to full hearings. Children’s officers may also be tasked to investigate and prepare reports to guide the judge in determining what arrangement best serves the child.
Custody decisions do not exclude the other parent from a child’s life. Non-custodial parents are generally granted visitation rights, save for exceptional cases where safety concerns arise. At the same time, both parents remain legally obligated to provide financial support, with maintenance contributions determined by their income and capacity.
Importantly, custody orders are not cast in stone. They can be reviewed if circumstances change, such as when a custodial parent relocates abroad or is found unfit to continue parenting. Appeals are also permissible, with dissatisfied parties free to move to the High Court for a fresh look at their case.
Family law experts stress that custody disputes should not be treated as battles. “The court’s role is not to punish either parent but to safeguard the welfare of the child,” explained advocate Jane Mwikali in Nairobi. “Parents should embrace custody as a shared responsibility, not a contest of rights.”
As Kenyan families navigate modern pressures and shifting dynamics, the courts remain central in ensuring that children are shielded from conflict and raised in environments that nurture their well-being. In every case, the child’s welfare remains the paramount consideration, shaping outcomes that go beyond parental rivalry to secure the future of the youngest citizens.
