Child custody is primarily involved in child relocation. The Children Act 2022 outlines child custody as both legal and actual custody. Legal custody is the conferral of parental rights and responsibilities to a person who has lawful custody over a child for a defined period of time pursuant to an order of a Court of competent jurisdiction, whereas actual custody is physical possession, care, and control over a child, whether exercised independently or jointly with another person.
Considerations for a Custody Order
The Children Act 2022 has stipulated the guidelines/ principles that are relied on by Courts while determining custody disputes. These principles include:
- the conduct and wishes of the parent or guardian of the child;
- the ability of the parent, or any other person in relation to whom the Court considers the question to be relevant, to provide for and care for the child;
- the ascertainable wishes of the relatives of the child;
- the ascertainable feelings and wishes of the child concerned having regard to the child’s age and understanding;
- any harm the child may have suffered or is at the risk of suffering;
- the customs of the community to which the child belongs;
- the religious persuasion of the child;
- whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force;
- the circumstances of any sibling of the child concerned, and of any other children of the home, if any;
- the likely effect on the child of any change in circumstances; and
- the best interest of the child.
Courts when considering the above are guided by the best interest of the child principle that is enshrined in Article 53(2) of the Constitution of Kenya.
Parental Responsibility Agreements/Consents
Where the parents have are separated or divorced the issue of custody among other terms such as care and control, access and travel is usually agreed upon in a Parental Responsibility Agreement/Consent. These issues are substantially discussed and mutually agreed upon by the parties. Travel and relocation is a crucial term that the parties agree on
Breach of Custody Order
Where a child has been removed from the custody of the parent who had actual custody or has been removed from the jurisdiction of the Court or the Republic of Kenya, an application can be made to court for a production order or a wardship order under the Children Act. A wardship order makes the Court the supreme guardian of the child to ensure their protection and safety. When a wardship order is issued, a child cannot leave the country without the leave of the court.
In conclusion, relocation of children is ideally a matter that is agreeable by the parents in writing. Where there is a dispute regarding the same which parties are unable to resolve an intervention of the court is sought in the best interest of the child.
