When parents split up or legally separate, one of the most emotional and complicated issues is deciding who will have full custody of the child.
Many people assume that the child automatically goes to the mother—but that is not what the law says.
Kenyan law clearly states that a child belongs equally to both parents. Whether the parents are married, separated, or divorced, neither automatically has more rights than the other.
All decisions about custody are made with one main goal: protecting the child’s best interests.
Lawyer Danstan Omari explains that the law treats both parents as equal shareholders in the life of the child.
He puts it this way:
“Section 101 of the Children’s Act treats a child like a company. The mother owns 50 percent shares, and the father owns 50 percent shares. So one parent cannot claim the child belongs to them alone,” he said.
However, during a separation or divorce, the child obviously can’t stay in two homes at once. This is where the court steps in to decide, guided by Section 103 of the Children’s Act. The court evaluates specific factors that focus entirely on the child’s well-being.
Below are some of the lesser-known but important factors that influence custody decisions:
1. Parent’s Behaviour and Involvement
The court closely looks at how each parent behaves toward the child. This includes emotional connection, day-to-day care, responsibility, and the ability to create a stable environment.
A parent who is attentive, calm, and responsible gains more favor than one who has shown neglect, violence, irresponsibility, or indifference.
2. Opinions From Relatives and the Community
Many people don’t realise that outsiders can influence the outcome. Community members and extended family may be allowed to weigh in on a parent’s character and suitability.
People who know the parent’s lifestyle and behavior can help the court understand whether that parent is responsible enough for custody.
3. What the Child Wants (If Old Enough)
If a child is mature enough—typically from around age 11—the court may listen to their opinion on who they prefer to live with. However, this is not the final say.
Omari explains:
“The wishes of a child matter. Children above 11 can say who they feel safer or happier with. But the court can ignore that preference if it goes against the child’s best interests.”
4. Protection From Harm
Child safety is a major factor. The court checks for any past harm in either parent’s care—physical abuse, emotional damage, neglect, exposure to violence, or psychological distress. Even the risk of such harm in the future can affect the decision.
The court wants to ensure that the child will grow up in a safe, nurturing, and stable home.
5. Cultural and Family Traditions
Although not as common today, cultural practices and heritage can still play a role. If a parent is seen as isolating the child from their cultural roots or rejecting important cultural values—especially where culture is tied to identity and family stability—the court may take that into account.
6. Ability to Provide
The court will assess whether each parent can meet the child’s basic needs. This goes beyond food and shelter; it includes emotional support, schooling, healthcare, clothing, and a healthy routine.
A parent does not have to be wealthy, but they must show that they can provide a stable and supportive environment.
7. Keeping Siblings Together
If the child has brothers or sisters, the court generally tries to keep them together because separating them can cause emotional stress. However, if splitting them up is clearly better for one child’s welfare, the court may make exceptions.
How the Court Makes the Final Decision
After weighing all these factors, the court grants custody to the parent who can best protect and support the child’s overall well-being.
The parent who gets custody is usually also given “care and control,” meaning the child will live with them most of the time.
The court will also set guidelines for visitation and access by the other parent. This can include weekends, holiday arrangements, or overnight stays, depending on what the court believes is safest and healthiest for the child.
In short, custody is not awarded based on gender, emotions, or assumptions—it is determined by what environment offers the child the best chance to grow, stay safe, and feel loved.
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