Child Custody in Kenya: What You Need to Know

When parents separate or divorce, one of the hardest questions often becomes: Who gets custody of the children? In Kenya, the answer isn’t automatic;  custody is decided based on what is best for the child, not on outdated assumptions.

Under the Children Act, 2022 (which governs custody, care, and maintenance orders), any parent or guardian can ask a court to grant legal custody or actual custody of a child. Legal custody gives the parent decision‑making rights for education, health, and welfare, while actual custody refers to who physically lives with the child.

How Courts Decide Custody: It’s About What’s Best for the Child

When a court reviews a custody application, it must consider several factors laid out in the Act, including: the child’s welfare and interests, the child’s age and capacity (if old enough to express a preference), the stability and suitability of the home environment, each parent’s ability to care for the child, religious or cultural background (if relevant), and any special needs or family circumstances.

This means custody doesn’t automatically go to the mother or father; the decision depends entirely on what will best support the child’s emotional, physical, and psychological well-being.

Joint Custody, Sole Custody, and Access Rights

There are different forms of custody under Kenyan law:

• Joint legal custody — both parents share decision‑making responsibility, even if the child lives with one parent.

• Sole legal custody — one parent has full custody, usually combined with physical custody (the child resides with that parent).

• Visitation/access rights for the non‑custodial parent, the court can allow scheduled visits, access, or other arrangements, even if custody is awarded to one parent.

Importantly, granting custody to one parent doesn’t automatically terminate the other’s parental responsibilities, including maintenance (financial support), rights to visit or be involved in key decisions, unless a court order says otherwise.

Common Myths vs. Legal Reality

Myth: “Mothers always get custody, especially of young kids.”
Reality: While historically courts might have leaned toward mothers (especially for very young children), recent rulings have clarified that custody is not gender‑automatic. For example, a 2022 judgment from a Kenyan Court held that even children below nine could legally be granted to fathers, depending on circumstances.

Moreover, custody decisions are based on each child’s best interest, not on gender or tradition.

Myth: “Once I have custody, nothing can ever change.”
Reality: Custody orders can be varied. Under the Children Act 2022, if circumstances change for example, the child grows older, living conditions shift, or a parent’s capacity changes, either parent can apply to modify or revoke the custody order if it better serves the child.

What Should Parents Know, and Prepare

If you're pursuing custody:

• Courts expect clear evidence: stable home, ability to care for child, emotional and financial support, and an environment conducive to the child’s growth.

• Be ready for the court to consider the child’s wishes (especially older children);  their voice matters.

• Even if you don’t get full custody, you may still receive access/visitation rights or have shared legal responsibilities.

• Make sure maintenance (education, healthcare, housing) is addressed, and custody doesn’t remove parental financial obligations.

• Always approach custody matters with the child’s welfare at heart, not as a moral contest between adults.

Final Take

For many families in Kenya, moving from separation or divorce into a stable and fair custody arrangement can feel overwhelming. But the law, guided by the Children Act and supported by recent court rulings, ensures decisions are driven by the child’s best interests, not by tradition or stereotypes.

This approach helps protect children’s rights, supports fair parental involvement, and encourages responsible parenting.

At AESIR Advocates, we believe that legal support should be about clarity, empathy, and fairness. If you or someone you know is navigating custody issues, we’re here to help you understand your rights, present a strong case, and safeguard what matters most.