When parents separate, the most important questions are usually about the children: where they will live, how much time they will spend with each parent, and how their needs will be paid for. In Kenya, these questions are decided under the Children Act, 2022, which came into force on 26 July 2022 and made important changes to the law.
The guiding principle: the child’s best interests
Article 53(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. The Children Act gives effect to that principle. Every decision about custody, access and maintenance is measured against what is best for the child, not what is fairest to either parent.
Equal parental responsibility
One of the most significant changes in the 2022 Act is the principle of equal parental responsibility. Under section 32, both parents share parental responsibility for a child on an equal basis, whether or not they were ever married to each other. Under the old law, a father who was not married to the mother had to acquire parental responsibility through an agreement or a court order. That is no longer the case.
Parental responsibility covers the duties, rights and authority a parent has in relation to a child. It includes providing for the child’s basic needs, such as food, shelter, clothing, education and healthcare. It also includes guiding the child’s upbringing and protecting the child from harm.
Parents can record how they will share these responsibilities in a parental responsibility agreement, which can be registered and later varied if circumstances change.
Custody and access
Custody determines who the child lives with and who makes day-to-day decisions. The court may grant:
- joint custody to both parents, with arrangements for where the child lives;
- sole custody to one parent, with access for the other; or
- in exceptional cases, custody to another person, such as a grandparent or guardian.
Section 103 sets out the principles the court must consider before making a custody order. These include the conduct and wishes of the parents, the wishes of the child depending on the child’s age and maturity, the child’s existing circumstances and relationships, and the child’s best interests. The court may ask for a report from a children’s officer.
The parent who does not have day-to-day care usually receives access, which is structured time with the child. Access may include weekends, school holidays and virtual contact. A child has a right to a relationship with both parents, and access is not denied except where it would harm the child.
Child maintenance
Both parents have a legal duty to maintain their child, whatever their marital status. When deciding how much each parent should contribute, the court considers factors such as:
- the income, earning capacity and assets of each parent;
- the financial needs of the child, including school fees and medical costs;
- the standard of living the child is used to; and
- any other support or responsibilities each parent has.
Maintenance can be paid directly to the parent who has care of the child, or straight to the school, hospital or other service provider. Parental responsibility can extend beyond the child’s eighteenth birthday in some circumstances, such as where the child is still in education or has a disability.
The court process
Custody and maintenance cases are heard in the Children’s Court. The usual steps are:
- Filing. A parent files a claim supported by an affidavit setting out the child’s needs, the parents’ circumstances and the orders sought.
- Interim orders. Where the matter is urgent, the court can make temporary orders on custody, access or maintenance while the case proceeds.
- Mediation. Many cases are referred to court-annexed mediation, which helps parents agree on a parenting plan.
- Hearing and judgment. If the parents do not agree, the court hears the evidence and makes final orders.
Orders are not set in stone. Either parent can apply to vary custody, access or maintenance if circumstances change, such as a change in income or the child’s needs.
Enforcement
Where a parent does not comply with a maintenance order, the court has enforcement powers. These include ordering deductions from the defaulting parent’s salary and attaching property, and persistent wilful default may carry further consequences. Keep records of all payments and missed payments.
Frequently asked questions
Will the mother automatically get custody of a young child?
Not automatically. Courts have traditionally been slow to separate very young children from their mothers, and a child’s age remains relevant. However, under the 2022 Act the deciding factor is the child’s best interests, and fathers can and do obtain custody.
Can I relocate or travel abroad with my child?
Moving a child abroad, or far from the other parent, affects the other parent’s responsibility and access. You should obtain the other parent’s written consent or a court order before relocating.
Do we need to go to court if we agree?
No. Parents who agree can record their arrangement in a parental responsibility agreement or a consent order, which gives certainty and can be enforced.
How we can help
We represent parents in custody, access and maintenance matters, with a focus on practical, child-centred outcomes. Where possible, we help parents reach agreement. To discuss your situation, contact Odek Law Advocates.
This article provides general information on Kenyan law as at October 2026 and is not legal advice. Please seek advice on your specific situation.