What law says on child access, custody and maintenance

Before the advent of the Children Act, custody of children originally was a mother’s automatic right. FILE PHOTO | NMG

What you need to know:

  • Constitution empowers women to rein in men in wrangles as well as protect kids from neglect.
  • In countries such as the US, Sweden and the UK, child maintenance is a tax issue and men cannot get any licence if they have not paid monies for their children.

A recent child custody case caused an uproar on how such cases are handled in the Kenyan corridors of justice.

The case came to the limelight through a video of a 10-year-old girl crying while holding onto her father.

While it was earlier reported that the minor was protesting the court’s decision to transfer her from the father’s care to her mother who had allegedly abandoned her when she was only one-and-half-years old, this narrative has since been established as a falsehood.

The correct position is that the minor lived with both her parents since 2010 when she was born until 2015 when they parted ways and filed their divorce case.

While her parents’ case went on, she lived with the mother who enrolled her at a school in Mwingi.

And the court ruled that the father is allowed to stay with her on two school holidays while the mother on one since she lives with the minor.

According to lawyer Peter Munywoki, who represented the mother, the video was aimed at portraying her in a bad light.

“The video circulating was viciously taken with an intention to reverse the court’s order, which was a balanced ruling, each of the parties would have parental rights,” he says.

With just this case alone, some people chose to point an accusing finger at the courts for favouring women and handing them custody of children quite often compared to the fathers.

However, there are indeed instances where men have been accused of using the corridors of justice as well to take their children away from their mothers.

Take, for instance, a case of a 28-year-old young woman whose identity cannot be revealed to protect her three children, was traumatised in a case at the Mavoko courts by their father.

The woman had been raised in a children’s home because she was an orphan and had a college diploma before meeting the father of her children. They had a home in Utawala but her husband instead told her to go and live at his rural home with their two children after asking her to stop working.

But it turns out the man had two other women with children and making her stay at the rural home was a way of hiding the secret.

When the woman opted to return to the city, the man moved to court and sought to have sole custody of the children while claiming that she was financially unable to take care of them, at the time.

She found herself thrown out of her matrimonial home, without her children, jobless and homeless after the court granted her husband’s request of taking care of the children with the help of a house girl.

In another case, a 25-year-old woman who was married off at the age of 13 is fighting for the custody of her two children aged nine and 10 after her wealthy husband sought to take them away.

Her husband owns flats in Nairobi’s Eastleigh Estate, which earns up to Sh 10 million in a month. He also owns a hotel in Marsabit known as Nomad.

While she dropped out of school to get married, she first lived in Marsabit with the husband before relocating to Nairobi.

And owing to the multiplicity of cases between her and the husband both in Marsabit and Nairobi, their children have been moved to various schools in just a year.

While she wanted her children to school in Nairobi within her reach, the Marsabit court ruled that Lang’ata police could forcefully remove the kids from her home and have them enrolled in a Nanyuki school near their father.

While the mother claims the children missed school for two terms last year after their father took them away, the man said he enrolled them at another school at the time.

The woman has since moved to the Court of Appeal to seek a reprieve.

Child access, custody and maintenance cases are many but the questions that remain unanswered are — how do Kenyan courts handle children cases?

Do children get justice and are the courts fair or unfair to them? Do the children have a choice?

According to lawyer Danstan Omari, there is a distinction between access and custody on court matters involving children. He says people commonly refer to both as custody.

He explains that before the advent of the Children Act, custody of children originally was a mother’s automatic right. This was a traditional approach in the care of children.

But when the United Nations Convention for the Rights of the Child, which Kenya is a signatory, came to into force, the principle changed and it became in the best interest of a child.

Kenya enacted the Children Act in 2001 and put in Section 4(3), which stipulates that all decisions arrived at by any court or any administrative organ such as probation, children department or anybody, at the core is the interest of a child, not parents.

This is clear in Section 83 of the Children Act, which provides the principles a court will use in deciding custody of kids.

Mr Omari points out that one of the considerations is the conduct of father and mother since the child’s conception.

“Do they involve in porn? Is there a club in the house? Is there domestic violence or abandonment issues? Court will look at conduct and behaviours of each parent,” he says.

Mr Omari also points out that the wishes of parents and guardians of the child or people in contact as well as that of the children themselves are another consideration.

“If the child is above the age of making decisions he or she will be consulted. Children above 11 are considered to be above tender age and can make a decision, wishes of a child are fundamental here because they can develop withdrawal symptoms or commit suicide,” he explains.

The advocate says the court also considers whether a child suffered any harm while in the hands of either parent, for example, being scolded, beaten and discriminated against before the matter went to court or faces a likelihood of being harmed if moved.

He further explains that circumstances of the sibling of the child are a factor, which a court considers too. This, Mr Omari says, favours mothers.

He says the law does not agree to a child being separated from his or her siblings because they need to bond.

“What is the best interest of the child? Can you remove a Class Eight to another school? No. Those are principles, which decide how the court will rule on custody,” he says.

While referring to the controversial case that circulated via a video on social media, Mr Omari cites it as an example of parental access on equal terms and not a custody case.

The law states that custody will always be with the mother unless there are compelling reasons.

Section 2 and Section 83 of the Children Act defines custody as actual possession, care and control. It refers to the one who will stay with the child, especially when schooling.

Access refers to when the child is not in school and the person who does not have custody will have a chance on alternate weekends, vacation or festive seasons. This is the available time when the child is not in school.

The law provides that there is no superior parent, both mother and father are equal hence the child needs to bond with both of them equally.

“People raise the question that she is married to someone else, he is with another woman, the child must start learning that they will move on if their parents move on with other partners, the child must learn that in life one belongs to two families,” says Mr Omari.

On perceptions on whether courts determine such cases fairly or unfairly, he points out that the ‘unfair term’ usually comes up when men are compelled to provide maintenance.

Traditionally, he says, when a woman moves on with another man, that new person will have to take care of her children.

However, the law states the child has one father and if he disagrees with the mother of his child and no longer associates with her, that man has to take care of their children.

“Cases of children are usually just against men because it is the child saying you are my dad, provide for me, pay my fees, buy my milk etc. But people have not removed that perception from the woman,” says Mr Omari.

“Cases of women being maintained are in divorce courts under alimony. A woman can sue a man in a divorce matter. Money men pay here not even a penny goes to the woman but people perceive this narrative.”

Previously, people believed that if women differed with their spouses and move on, they could not pursue child maintenance.

Before the coming of the Constitution, Section 25 of the Children’s Act, dictated that if a couple was not married but had children, the man could not be compelled to take care of them.

The presumption was that if maintenance was allowed in such a case, prostitution and adultery is encouraged.

“That was the thinking, parental responsibility rested with the mother unless the man enters into an agreement with the woman. But the question that remained was whether any man could do that and women could not get any help from the courts then but were chased away because they lacked marriage certificates,” explains Mr Omari.

With the enactment of the new Constitution, Article 53, stipulates that a child will be maintained by the father whether married or not.

The law now points out that the responsibility is to a father. This means we shifted from maintenance being pegged on marriage but a biological function.

“As long as you had sex and there is pregnancy, be it a one-night stand or prostitution, it does not matter. Women have realised this and are moving to court,” he says.

While men in Kenya may see the law being biased, the concept of making men take responsibility for children they have sired is not new.

In countries such as the US, Sweden and the UK, child maintenance is a tax issue and men cannot get any licence if they have not paid monies for their children.

“It is the fundamental thing that before you pay anything, responsibility must go to a child. So, Kenya is catching up with international standards and men are a worried lot now on how they are going to deal with this. Unless people get this no one understands,” says Mr Omari.

So, what does one need to know about child maintenance while in Kenya? How much will it cost to file such a case in court?

In 2017, the government, through the Justice, National Cohesion and Constitutional Affairs ministry then, now the department of justice and state law office, established the National Legal Aid and Awareness Programme.

This lobby was set up to help people get legal advice as well as aid, especially those who cannot afford court fees to boost access to justice.

For child maintenance cases, all one needs is to walk into the offices based at Corner House building in Nairobi with a birth certificate, birth notification or baptismal card.

After sharing your story with a team of lawyers who offer their services free of charge, your matter is drafted and taken to court with the case documents attached with fees structure.

Whether they have names of the father or not, these documents are attached to what goes to court. If there is evidence of who the father is, an interim order on education and maintenance will be granted immediately even before the father is given a chance to be heard.

But if the documents don’t reflect names of the father, especially on the birth certificate, Section 24 of the Children Act says any man who has supported a child for 12 continuous months, in law he stands as a father and cannot run away from responsibility.

“If we live in the same house, attend school functions, introduced as the father or I am behaving in a manner to suggest I am a father, I cannot run away, whether the child is mine or not, I cannot run away from responsibility herein,” says Mr Omari.

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