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Child custody is always an emotive issue when the relationship between the parents has broken down. When the parents of a child do not agree as to who will stay with the child, the resultant dispute is a child custody dispute. Issues involving child custody will normally also attract resultant questions with regard to who maintenance of children and child support. The purpose of this article is to enable the reader to be able to distinguish between child custody and child support, as well as to understand the law as is applicable to both.


Section 81  of the Children’s Act Number 8 of 2001 Laws of Kenya, defines child custody to be “so much of the parental rights and duties as relate to the possession of the child“. Care and control means “actual possession of a child, whether or not that possession is shared with one or more persons.”

Child custody is further divided into 2 types of custody:

  1. Legal Custody:-  This refers to rights and responsibilities that are conferred on by a custody order. These include the responsibility to maintain a child.  It is only a parent who has been given legal custody of a child, that is liable to pay child maintenance. This is the reason why most court orders in matters involving children will first grant joint legal custody before proceeding to deal with actual custody of the child and maintenance.
  2. Actual custody:- Actual custody of a child is synonymous with care and control of a child. It is the actual possession of a child whether or not the possession is shared with the other parent or any other person. Thus whoever the court gives actual custody of the child, is the person who will live with the child.

The court is always guided by the best interest of a child while making a determination on which parent to grant actual custody. Under this principle, case law is settled that a child of tender years, i.e. a child under the age of 10, is at first instance to be given to the mother, unless it can be proven that the mother is unable to take care of the child, or is even a threat to the child.

However, Section 83 of the Children’s Act sets out the following principles guiding the court in making a custody order. The court must consider the following:

  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 and under whom the child has made his/her home in the last 3 years before the application to the court.
  4. The ascertainable wishes of the child.
  5. Whether the child has suffered any harm, or is likely to suffer any harm if the order is not made,
  6. The customs of the community to which the child belongs.
  7. The religious persuasions of the child
  8. Whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether or not those orders remain in force.
  9.  The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
  10. The best interest of the child.

Once the court considers all the above, it will then proceed to make a custody order. Many times a court is guided by official inquiry reports made by Child Services, who then decide whether or not to recommend either parent to have custody of their child.


Child maintenance refers to the duties of parents to provide for the basic needs of the child. The basic needs are listed in Section 23 of the Children’s Act as :

  • Food
  • Shelter
  • Clothing
  • Education
  • Medical provision

Article 53 (1)(e) of the Constitution provides that a child has the right to equal responsibility from both parents to maintain the child. On this basis, the Children’s Court will take into account the above needs of the child and then split the needs equally between the parents by the consequent making of a maintenance order.

Under Section 76 (3)(f) of the Children’s Act, the court is mandated to consider the financial ability of each parent to maintain the child. To this end, courts usually ask both parents to swear an affidavit of means which shows how much the parent earns in a month, vis a vis how much the parent spends.

Where either parent violates a maintenance order, it is treated as contempt of court, and the violating parent risks jail term on the same.