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Shared Parenting
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  1. 1. Custody, Maintenance & Guardianship
  2. 2. CUSTODY(S 81 CA)  Means having possession of the child with all the rights & duties that accrue therefrom;  Types of custody  i) legal custody …; This is as much of the parental rights and duties in relation to possession of a child as are conferred upon a person by a court order. Legal custody does is to confer upon a person the right to make major decision about the child’s health, education and welfare. All these duties and rights are given under legal custody. If person has legal custody but the child is not in their possession (temporarily) they are considered to still have legal custody; ii)actual custody .This is the actual possession of a child, whether or not that possession is shared with one or more persons. A person with actual possession of child but no legal custody also has same duties as those with legal custody
  3. 3. A Actual custody can be Joint Custody – Joint physical custody because the Act states that the actual physical custody of a child can be shared with one or more persons. Also implied in that section is sole custody because it is quite possible under the Act for one person to have both the legal and actual custody of a child.  iii) Care & control- means actual possession of a child, without custody of the child. Where a person lacks legal custody of a child,but has care and control of the child, he shall be under a duty to safeguard the interests and welfare of that child  Where a person has actual custody of the child but no legal custody , they are deemed to have care and charge of the child and shall be under a duty to take all reasonable steps to safeguard the interests and welfare of that child. E.g. school, health care, food etc
  4. 4. In addition to custody the court can make certain orders under the Act  ACCESS ORDERS  RESIDENT ORDERS Section 114  CARE ORDERS  i)Access Order requires a person with whom a child is residing to allow the child to visit or to stay periodically with a person named in the order or to allow such person to have some other contact with the child. Also referred to as visitation rights in other jurisdictions. One proviso in the Act is that an access order shall not be made in relation
  5. 5.  to a child in respect of whom there is already a care order in place.  ii)Care orders are given under Section 132 .The order entrusts the care and possession of a child to a person who is not the parent, guardian or custodian of the child .It can be to an institution which is appointed by the court. Usually for the protection of the child especially children in need of care and protection e.g. Those exposed to domestic violence, female genital mutilation etc.  Iii)Residence orders are given to a person and shall require the child to reside with that person and also provide for arrangements to be made to facilitate the residence of the child with that person. Such an order will impose certain conditions and define the duration of residence.
  6. 6. Custody Order Can be applied for by: Parents Guardian  Person who applies with consent of the parent or guardian & has had actual custody of the child for 3 continuous months before the filing of the application. Any person who can show cause or convince court that they are interested in the child’s welfare
  7. 7. Factors in awarding custody  the best interests of the child are paramount  wishes of the parents or guardian of the child;if no parents;  the ascertainable wishes of the relatives of the child;or  the ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has stayed with in the last three years prior to the application;  the ascertainable wishes of the child; (age is a factor here)  whether the child has suffered any harm or is likely to suffer any harm if the order is not made;
  8. 8. Factors in awarding custody contnd  the customs of the community to which the child belongs;  the religious persuasion of the child;  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 and whether those orders remain in force;  the siblings of the child and other children of the home, if any; e,g court may not want to separate the siblings; are they hostile or friendly ?etc
  9. 9. Factors in awarding custody contnd  Conduct of parent who is cause of the divorce  See AOG v SAJ & Another [2011] eKLR  Where a custody order is made giving custody of a child to one party to a marriage or to one guardian where they are joint, or to one parent where unmarried, the court may order that the person not awarded custody shall still have all or any rights and duties in relation to a child, other than the right of possession, jointly with the person who is given custody of the child.
  10. 10. In Boyani Vs Mwaghoti  The applicant filed a petition for divorce together with a chamber summons seeking for the custody of two children of the marriage to the respondent. AM aged 7years and DW aged 2½ years. Section 83(1) CA provides for the matters that should be considered when granting custody. Both parents were financially comfortable and all factors stated in the section aforementioned were met. This being the case, the then Otieno Onyango J. considered the age of the children in order to determine custody. It was held that the two children of the marriage were still within the ages that dictated that they live with their mother unless she is found to be hopelessly unable to take care of them.
  11. 11.  Where during a judicial separation or a divorce, the court finds the parent by reason of whose misconduct the separation/divorce is made to be unfit to have the legal custody of the child/ children of the marriage, the parent declared unfit shall not be entitled to legal custody of the child upon the death of the other spouse except with the leave of the court.  A child cannot be removed from the custody of a person who has lived with them for 3 years whether continuously or not against the custodian’s will unless it is by leave of court.  If one removes a child without court’s leave , its an offence punishable by imprisonment not exceeding three months(3) or a fine not exceeding 10,000/= or to both
  12. 12.  if the police officer acting in pursuance of the search warrant finds the child, he shall return the child to the person with lawful custody.  Where a court makes a custody order it shall in addition, give directions regarding rights of access to the child, and maintenance of the child as the court may deem fit.  Custody order lasts until the child is 18 yrs old then ceases automatically.
  13. 13. Revocation of Custody order  Usually made on application by one of the parties  Court should determine the new custodian of child before revoking the previous Custody order. A person whose application for revocation has been rejected before should not reapply unless:  there’s a change in circumstances or other good reason for the court to entertain the application ; Where the court in the previous rejection of app, exempted it from the application of this section
  14. 14. Revocation of custody contnd  Application of revocation can be made by a custodian in relation to access orders and maintenance .  Application can also be made by person who has an order of access or who contributes to maintenance.  Application affecting custody does not affect an access or maintenance order unless court states otherwise.  Custody order/access orders/maintenance of a child orders, cease having effect when child attains 18 years.  Upon application to court, the court can extend a custody, access or maintenance order beyond the child’s 18th birthday, for such period as it shall deem fit.(e’g if still in school, needs healthcare, mentally unfit etc).
  15. 15. Interim custody orders  court shall have power to make interim custody orders and can review, suspend or vary such orders.  An interim custody order shall not exceed twelve months(1 year).
  16. 16. MAINTENANCE OF CHILDREN  This is the financial responsibility in relation to upbringing of a child; towards education, food, shelter medical care etc  Usually made by the court at the same time as the custody order.
  17. 17. Presumptions on maintenance  where the parents of a child were married to each other at the time of the birth of the child and are both alive, they share joint responsibility to maintain the child.  where two or more guardians of the child have been appointed, all guardians have joint maintenance responsibility with/without conjunction with parents  where two or more custodians have been appointed in respect of a child- they have joint responsibility to maintain the child.  Where there’s a residence order for 2 and above persons ,joint responsibility is for all sharing residence order.
  18. 18. Presumptions on maintenance  Article 53(1)(e), the Constitution provides that both the mother and father of a child have equal responsibility to a child whether or not they were married to each other.  Sec 24(3) CA Where a child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other—  (a) the mother shall have parental responsibility at the first instance;  (b) the father shall subsequently acquire parental responsibility for the child in accordance with the provisions of section 25.  Sec 24(3) was declared as being contrary to the Constitution art 53 which requires equal parental responsibility whether parents married or not . SEE ZAK &ANO VS AG & ANO.
  19. 19.  ART CA25. (1) CA Where a child’s father and mother were unmarried at the ti me of his birth—  (a) the court may, on application of the father, order that he shall have parental responsibility for the child; or  (b) the father and mother may by agreement (“a parental responsibility agreement”) provide for the father to have parental responsibility for the child. 
  20. 20.  25(2) CA Where a child’s father and mother were not married to each other at the time of his birth but have subsequent to such birth cohabited for a period or periods which amount to not less than twelve months, or where the father has acknowledged paternity of the child or has maintained the child, he shall have acquired parental responsibility for the child, notwithstanding that a parental responsibility agreement has not been made by the mother and father of the child.  Sec 90(e) CA where the mother and father of a child were not married to each other at the time of birth of the child and have not subsequently married, but the father of the child has acquired parental responsibility for the child, it shall be the joint responsibility of the mother and father of the child to maintain that child.
  21. 21.  The sections imply that unless a father has voluntarily accepted parental responsibility, the responsibility remains with the mother where the couple were unmarried at the time the child was born.  In ZAK 7 ANO VS THE AG & ANO. J. Mumbi Ngugi held that section 23(4) and 25, and sec 90(a) and (e) of the Children Act are unconstitutional, null and void for breach of Articles 27(1), (2) and (4), and Article 53(1)1(e) of the Constitution.  The AG conceded that they were unconstitutional
  22. 22.  The Children’s Bill 2017 is to put sec 24 in conformity with Constitution. Section 27(3)a states  ‘Where a child’s father and mother were not married to each other at the time of the child’s birth, and have not subsequently gotten married to each other— both the mother and father shall have parental responsibility at the first instance;  This is repeated in sec 104(e) of the Bill which requires maintenance by both parents if they were not married.
  23. 23. Maintenance Order Applied for by: • Parent, guardian or Person with custody of the child can make application.  -Court can also make orders of maintenance while making, varying, or discharging a residence, guardianship or custody order, even though no application has been made by any person.
  24. 24. A person who has reached 18 years may, with the leave of the court, apply to the court for a maintenance order to be made in his favour in the following circumstances;  The person is or will be involved in education and training which will extend beyond the person’s 18th birthday; or • the person is disabled and requires specialised care which will extend beyond the person’s 18th birthday; or  the person is suffering from an illness or ailment and will require medical care which will extend beyond the 18th birthday OR
  25. 25. other special circumstances exist which would warrant the making of the order. SEE WAMBUA VS WAMBUA  The court can make a maintenance order, whether or not proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings have been filed by the parent of a child or not. Once proceedings for the maintenance of a child have been commenced under the CA or any other Act, no subsequent or other proceedings with respect to the maintenance of that child may be commenced under any other Act without the leave of the court.
  26. 26. Factors considered in granting maintenance orders  The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future;  the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future ;eg if they have other family they take care of.  the financial needs of the child and the child’s current circumstances;  the income or earning capacity, if any, property and other financial resources of the child;(may have inherited or has
  27. 27. Factors contnd business)  any physical or mental disabilities, illness or medical condition of the  How the child is being or is expected to be educated or trained;  the circumstances of any of the child’s siblings;  the customs, practices and religion of the parties and the child;  If respondent has assumed responsibility for the maintenance of the child and if so, the extent of responsibility, the basis of assuming that responsibility , and the period during which he has met that responsibility;
  28. 28. Factors court considers in maintenance  Where it is a step parent ,court considers whether the respondent assumed responsibility for the maintenance of the child knowing the child was not his child,  where parents were unmarried, court considers whether the respondent assumed responsibility knowing that he was not legally married to the mother of the child;  the liability of any other person to maintain the child;  the liability of that person to maintain other children.
  29. 29.  Court may order maintenance money to be paid through either  periodical payments; e.g monthly, quarterly etc OR  lump sum payment as the court shall deem fit’  A person who gets order can receive money on behalf of the child until 18th birthday of the child when maintenance order ceases unless extended by court. Court can however change the person to receive money on behalf of the child where;  is not a fit or proper person to receive any maintenance monies.  has left the jurisdiction of the court for an indefinite period,  is dead
  30. 30. is incapacitated or has become of unsound mind has been imprisoned has been declared bankrupt; has misappropriated, misapplied or mismanaged any maintenance monies paid to him for the benefit of the child. In this case,the court can appoint another person to receive the monies instead or order that the money or property be deposited in trust for the child.
  31. 31.  The court can impose conditions it deems fit to an maintenance order.  Court can also vary, modify or discharge any order made with respect to the making of any financial provision by ;e.g if one looses job or gets job etc
  32. 32. Consequences of defaulting on maintenance order  Court can order that any arrears in respect of any maintenance monies be paid immediately, or by instalments or within such other period specified by the court;  issue a warrant for distress on the respondent’s property  Order the attachment of the respondent’s earnings including any pension The court shall not, unless special circumstances exist, make an order for the attachment of the respondent’s earnings which does not exceed more than 45% of the respondent’s annual income in any period of twelve months(1 year);
  33. 33. Consequences of defaulting on maintenance order I)Court can commit the defaulter to civil jail for a period of not less than five(5) days nor more than four weeks(1 Month): The court can only issue a warrant for imprisonment if satisfied that— (a) the respondent has persistently and wilfully refused or neglected to make payment of all or any part of the maintenance monies or a contribution order without reasonable cause; (b) the respondent is present at the hearing; (c) an order for attachment of earning would not be appropriate; (d) is satisfied that such default was due to the respondent’s wilful refusal or culpable neglect.
  34. 34. Other cases on custody  See John Onyando vs Ruth Moraa [2005] eKLR (Difference between legal custody & actual custody; custody to person outside Kenya)  Mehrunnissa vs Parvez [Civil Appeal No. 11 of 1979) (conflict between Mohammedan law & Children law; agreement on custody; custody of child of tender years; jurisdiction of court)  S.O v L.A.M [2009] eKLR-(Custody of child of tender yrs, no of witnesses to prove custody issues, mother not having job, Teso custom vs Children Act
  35. 35. Other cases on maintenance  MW vs KC [2005] eKLR-right of child to be maintained by father; where father denies paternity; jurisdiction of court to order DNA test; grounds)  Diana Ndele Wambua Vs Dr Paul Makau Wambua. The applicant in the matter was a 22 year old lady. She filed an application seeking leave to commence proceedings for maintenance against her father under the Children Act, 2001. the material facts were that the applicant was a University of Nairobi Student where she pursued a parallel degree programme in medicine at the time of filing the application. The parents to the applicant had separated sometime in 1995 and custody of the children, including the applicant, had been given to the mother. The Respondent was ordered to pay school fees for the children, which he did until the applicant reached form four. Meanwhile, the applicant joined university but this was at the time she had reached the age of majority and, therefore, the order for maintenance had lapsed. The Respondent was at all material times a member of staff at the University
  36. 36.  at the University of Nairobi where he was entitled to the Staff Education Support Fund (SESF) for his children which would cover up to 50%of the fees for his children. The applicant has sought her father’s completion of her forms for her to benefit under the facility but the father had declined. She, therefore, invoked the legal regime under the Children Act. She first commenced the matter in the Children Court but the court advised that owing to the matters relating to monetary jurisdiction, she would rather commence the matter in the High Court. The application was to turn on section 28 of the Act that mandated the court to extend the age limit to which parental responsibility attached. The Respondent opposed the application on the ground that he application was not brought within the ambit of the rights of the child under sections 4 to 19 of the Children Act. The Respondent further contended that the word child meant a person below the age of 18 years and, therefore, the responsibility of raising the age for parental responsibility lay with the Children Court. The respondent further contended that he had faithfully performed his responsibility and that the only special circumstance that would entitle the applicant to the orders sought would have been if the applicant had attained the age of 18 years before completing her secondary education. The respondent urged the court not to compel him to perform a moral and social responsibility.
  37. 37.  the court noted that the applicant was a daughter of a medical doctor and a professor and the university. That although the mother’s profession was not disclosed, it was on record that she was a civil servant working for an international organization, the UN. The court satisfied itself that the parents to the applicant belonged to an educated elite, they had set very high standards for their children and education, in their circumstances, could be said to include higher education. The court proceeded to grant t applicant leave to file an application for an order of maintenance against the Respondent with a caveat that the maintenance ought not go beyond what was provided for under SESF and only as long as the Respondent remained an employee of the University of Nairobi.  The case confirmed that in an appropriate case, the court would extend maintenance beyond 18 years.
  38. 38. Maintenance case/parental responsibility  Rose Moraa (Suing thro’ Next Friend) Josephine Kavinda & ANother Vs Attorney General. NRB Hcc CIVIL CASE NO. 1351 2002 (O.S.) i)The question was whether section 24(3) of the Children Act either of itself or in its effect was discriminatory to the extent that it expressly or constructively prescribes that a father of a child who is neither married to nor has subsequently married the child’s mother bears no parental responsibility in relation to that child" ii) Whether Section 24(3) of the Children Act was inconsistent with section 82(2) of the Constitution of Kenya concerning a child whose parents were not married to each other at the time of the child’s birth to the extent that it permits a father of such child to discharge parental responsibility to the child If this went against the CRc. -
  39. 39.  Rose’s mother was unmarried to her father and she sought to have the father take parental responsibility including maintaenace of the child.  This was under the old Constitution which did not provide for equal responsibility of both parents for a child whether married or unmarried. The court ruled that;  -where the words of the constitution or statute are unambiguous the courts have no choice but to enforce the local law irrespective of any conflict with international agreements. Where not domesticated, the court held, Treaties may be taken into account in seeking to interpret ambiguous provisions of municipal law.
  40. 40. Court found that Section 23(4) and by extension 25 do not offend the principle of equality and non-discrimination either by themselves or in their effect. We further hold that the principle of equality and non-discrimination does not mean that all distinctions between people are illegal. Distinctions are legitimate and hence lawful provided they satisfy the following:  1. pursue a legitimate aim such as affirmative action to deal with factual inequalities; and  2. are reasonable in the light of their legitimate aim  The applicants case was dismissed .
  41. 41.  MAINTENANCE OF SPOUSE  77. (1) The court may order a person to pay maintenance to a spouse or a former spouse—  (a)if the person has refused or neglected to provide for the spouse or former spouse as required ;  (b)if the person has deserted the other spouse or former spouse, for as long as the desertion continues;  (c)during the course of any matrimonial proceedings;  (d)when granting or after granting a decree of separation or divorce; or (e) if, after making a decree of presumption of death,  the spouse or former is found to be alive.
  42. 42. When does maintenance lapse  S78 Marriage Act  if the maintenance was unsecured, on the death of the spouse; .  if the maintenance was secured, on the death of the spouse in whose favour it was made; or  where the person being maintained is subsequently able to support himself or herself.  Upon the re-marriage of the beneficiary of the order. (s79)
  43. 43.  The court may revoke or vary a subsisting maintenance order where if it is satisfied that the order was based or obtained as the result of any misrepresentation or mistake of fact .  Also revoked where there has been a material change of circumstances since the order was made e.g one spouse being maintained is subsequently financially able to support themselves.  The case has to be filed within 3 years from the time the money becomes payable.(Limitation period)  maintenance arrears which remained unpaid before the death of the person entitled shall be a civil debt recoverable by the legal personal representative of that person.
  44. 44. GUARDIANSHIP “guardian” means a person appointed by will or deed by a parent of the child or by an order of the court to  assume parental responsibility for the child upon the death of the parent of the child  either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child
  45. 45. guardian  Guardian may be appointed in respect of any child who is resident in Kenya whether child born in Kenya or not or is a Kenyan citizen.(child must be resident in Kenya)  The guardian appointed need not be a Kenyan citizen or resident in Kenya.  A guardian may be appointed in respect of the person or the estate of the child or both.
  46. 46.  If appointed only in respect of the estate of the child, he does not need to have actual custody of the child but shall have—  the power and responsibility to administer the estate of the child and  to receive and recover and invest the property of the child in his own name for the benefit of the child;  the duty to take all reasonable steps to safeguard the estate of the child from loss or damage;  the duty to produce and avail accounts in respect of the child’s estate to the parent or custodian of the child or to the court or to other persons the court may direct on every anniversary of the date of his appointment;  to produce any account or inventory in respect of the child’s estate when required to do so by the court.
  47. 47. Rights of surviving parent as to guardianship • If the father of a child dies , the mother if surviving shall be the guardian of the child, and if no guardian has been appointed by the father or the guardian appointed by the father is dead or refuses to act, the court may appoint a guardian to act jointly with the mother.  On the death of the mother of a child, the father, if surviving, shall be the guardian of the child either alone or jointly with any guardian appointed by the mother or if the guardian appointed by the mother is dead or refuses to act, the court may appoint a guardian to act jointly with the father.
  48. 48. Guardianship Where a parent appoints a guardian by Will or Deed it is only valid if ;  in the case of an appointment by deed,  the deed is dated and is signed by the person making the appointment  in the presence of two witnesses;  in the case of an appointment made by a written will,  it should be made executed and attested in accordance with the provisions of section 11 of the Law of Succession Act ,and if by oral Will in the course of an oral will if it is made in accordance with sec 9 of LSA .
  49. 49. Claim to guardianship can be raised by: Surviving parent If two joint guardians; one of them Relative of child Interested party
  50. 50. Revocation of guardianship appointment  An appointment as guardian is revoked; if the person who made the appointment revokes it by a dated instrument which is signed—  by him; or  at his direction, in his presence  in the presence of two witnesses who each attest to the signature.  if the will or codicil appointing a guardian is revoked, the appointment stands revoked too.
  51. 51. Ending guardianship through court Order of the court ending guardianship on the application of—  any parent or guardian; or  the child concerned, with the leave of the court;  a relative of the child,  The director  by the court itself in any proceedings if the court considers that it should be brought to an end even though no application has been made. Where a court revokes an appointment of guardian the court shall before doing so, ascertain who would have guardianship or legal custody of the child if, on the revocation of the appointment of the guardian, no further order was made.
  52. 52.  Guardianship exists only up to 18th birthday of child  Can be extended by the court through application of child, parent, relative, guardians etc  Court may extend because of;  the child suffers from a mental or physical disability or from an illness that will render him incapable of maintaining himself, or of managing his own affairs and his property without the assistance of a guardian after his eighteenth birthday  or other exceptional circumstances with regard to the child as the court may deem proper
  53. 53. Any guardian of the estate of a child who—  wilfully or recklessly neglects to receive and safeguard any asset forming part of the estate, misapplies any such asset or subjects any such asset to loss, waste or damage; or  wilfully fails to produce to the court, or the parent or guardian of the child any account or inventory required or  wilfully or recklessly produces any such inventory or account which is false in any material particular, Is guilty of an offence and shall be liable to a fine not exceeding 50,000/= or to imprisonment for a term not exceeding one year or to both .