Factors courts consider when granting custody of children.

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This is a creative blog,and as much as I wanted to restrict myself from getting my profession involved, I still found my mind, guilty of the act.

A colleague of mine is going through a harsh divorce and she came to me, to ask about how they will go about splitting their children. I mean, am not yet an Advocate of the High Court, but I honestly cannot turn down a sister! So I thought I share here so that she can benefit as well as my readers who may be going through a similar situation.

First things first, let us find out, who can be granted custody under the Children’s Act. Custody can be granted to parents of the child, guardian or it can be granted to any person who applies for custody with the consent of a parent or guardian and that person must have had actual custody of the child for a period of at least 3 months preceding the application. These are the factors considered when a court is deciding on whom to be the custodian of the child or children.

In cases of divorce, separation the most affected party is the child, a very sad situation. My opinion on the same would be that you stay together till the children are old enough to handle such situation, but that’s just my opinion.
In determining consideration of custody, the court is required to have regard to certain factors or certain principles:

1. The conduct and wishes of the parent or guardian of the child;
2. The ascertainable wishes of the relatives of the child;
3. The ascertainable wishes of any foster parent or any person who has had actual custody of the child for the last 3 years preceding the application;
4. The ascertainable wishes of the child
5. Whether the child has suffered any harm or is likely to suffer any harm is the order is not made.
6. Customs of the community to which the child belongs;
7. Religious persuasion of the child;
8. Whether any other order has been made in relation to the child that is the care order, supervision order, protection or exclusion order and whether that order remains in force;
9. the circumstances of any siblings of the child and of any other children of the home; and
10. Best interests of the child. A definition of the best interests of the child is given under Section 4(3) (4) of the Act. That section firstly says that in all actions concerning children the best interest of the child shall be of primary consideration and in (3) it is stated that any action will be considered to be in the best interest of the child if it is calculated to firstly safeguard and promote the rights and welfare of the child. If it is aimed at conserving and promoting the welfare of the child and if it is aimed at securing for the child such guidance and correction as is necessary for the welfare of the child and in the public interest. (this is a nebulous definition and leaves a lot to the discretion of the court to determine what is in the best interests of the child, said to be a disadvantage of these standards, but it has also been argued that it has its own advantages the most important being that it is now focusing on the need of the child, which is of paramount consideration but it is said that it is difficult to apply since there is no uniformity. If depends on different factors and on a case to case basis.

Finally the Act in cases of custody on divorce the Act specifically provides under Section 83(3) that in any case where a decree for judicial separation or divorce is pronounced, if the court pronouncing the decree finds the parent by reason of whose misconduct the decree has been given is unfit to have legal custody, then the parent so declared unfit shall not upon the death of the other parent be entitled to legal custody of the child except with the leave of the court. In other words the conduct of parents just like in Common law is critical when granting custody of children.

This is provision under the Children’s act, of the Laws of Kenya.

Terms differ a slightly under the following:

1. Custody of children under customary law
2. Custody of children under Islamic law.


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15 Comments to Factors courts consider when granting custody of children.

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