Single parenting has become the now normal. In the current social settings of our society, it is not uncommon for people in amorous relationship to decide to have children without necessarily living together under the same roof or having plans of tying the knot in the future.
On the other hand, the rate of divorce and separations is so high and in the process of handling such cases, courts of law are required to determine the fate of children born out of such relationships as to who among the two parents is given custody and as well as access to the children by the parent who does not live with them.
For a very long time the issue of custody of children has been dealt with under the Law of Marriage Act (Cap 29 R.E 2019) due to lack of a specific law dealing with issues concerning welfare of children until 2019 when the Law of the Child Act ( Cap 13 R.E 2019) was enacted and became operational.
However, it should be noted that the law of the child did not repeal the provisions of the Law of Marriage Act which deals with issues of welfare of children or gives exclusive jurisdiction to juvenile courts to deal with issues of custody or access to children.
Therefore, courts enjoy concurrent jurisdictions when dealing with issues concerning welfare of children. As promised in our previous article dissolution of marriage, custody of children and division of assets, now this article focuses on custody of children and considerations for applicants to be granted custody as stipulated under the Law of Child Act.
Circumstances for application of custody or access
As common sense would dictate, there is need of making application for custody of children when parents of such children live together. Also, sometimes partners or parents reach a mutual agreement on who between them gets custody of the children in question and how the one who lives away can access them.
Therefore, it is only in situations where parents have separated or divorced and have failed to reach an agreement on issues of custody and access or where circumstances exist as provided in the law when an application for either custody or access can be made in court.
Section 26 of the Law of the Child Act provides for the right of the child when parents are separated or divorced and paragraph (b) of the same section stipulates that one of the rights is for the child to live with a parent who, in the opinion of the court, is capable of raising and maintaining the child in the best interest of the child.
Who can make application for custody or access order?
The Law of the Child Act provides for the same under section 37 wherein it states that: “A parent, guardian or a relative who is caring for a child, may apply for custody of the child. In the same line the law under section 38 provides that “A parent, guardian or a relative who has been caring for a child prior to the court order may apply to a court for periodic access to the child.” Although the parents are given priority in this kind of application, the law has accommodated even situations where non-biological parents to seek custody or access of the child.
Considerations by courts of law
Courts of law decide cases based on laws and facts. In the application for custody or access, the main and paramount consideration is the best interest of the child. Section 4 of the Law of the Child Act Cap 13 R.E 2022, provides that the primary consideration in all actions concerning children is the best interest of the child.
This is insisted in the case of Glory Thobias Salema vs Allan Philemon Mboya, Civil Appeal No 46 of 2019 in which it was stated that: “The law is well settled that in any event dealing with a child, the primary consideration shall be on the best interest of the child. I refer to Section 4 (2) of the Law of the Child Act No. 21 of 2009 read together with section 125 (1) of the Law of Marriage Act Cap 29.”
Further, it should also be noted that it is in the best interest of the child to see both parents. This is a very important factor which courts always consider by ensuring that when one parent is given custody, the other one is granted access unless there are extraneous circumstances which prevent the court from granting access orders.
What is the best interest of the child?
The law has not defined the term “best interest.” Instead, it has been left to courts of law to decide or judge based on the circumstances of each case and the test applicable is a subjective one.
However, there are general guidelines or factors provided in the Law of the Child Act which courts take into consideration when granting or denying custody or access.
Section 39 (1) states that the court shall consider the best interest of the child and the importance of the child being with mother when making an order for custody or access,(2) the age and sex of the child, (3) preference of the child to be with his parents except if his or her rights are persistently being abused by parents, (4) the views of the child if the views have been independently given, (5) that it is desirable to keep siblings together and (6) the need for continuity in the care and control of the child and any other matter that the court may consider relevant.
It should be noted that when interpreting what are the best interest of the child, courts of law do not consider one factor in isolation of the others but all the factors cumulatively. Sometimes there are scenarios when biological parents are denied custody in favour of guardians like.
An example is the Civil Appeal No 67 of 2021 between Habby Longo vs Dotto Kifizi and Diana Kifizi wherein the biological father was denied custody based on the fact that the child in question had established a strong bond and attachment with the guardians and for her well upbringing, it was in the best interest of that child to continue being in the custody of her guardians.
In another scenario, a biological mother was denied custody of a female young child in favour of the father in the the case of Kavita Kanji vs Vishal Solanki (Civil Appeal no. 24 of 2021).
Although the Law of the Child Act has not emphasized on the considerations for a parent, guardian or relative caring for a child to be granted access, it should never be assumed that it is automatic when one parent is granted custody, then the other one will have an automatic right of access. In practice the “best interest rule” is applicable to right of access and in fact it is the yardstick which is used prior to court granting the right of access as well.
In order to establish the best interest of the child, the court shall require a written social investigation report in respect of a child before making a care order or supervision order. This is in accordance to Section 31 of the Law of the Child Act.
Therefore, in cases where the other parent is deemed not capable of fostering the wellbeing of the child , the courts look into ways of striking a balance between the importance of a child having a bond of both parents and protecting the best interest of the child.
Such parent can be given visiting rights to the place where the child stays or can be granted supervised access of that child. One thing needs be noted: an order of custody or access is not permanent, it can be varied once circumstances change but only upon application in the same court which issued the aforesaid orders.