Child custody decisions in Kenya are primarily guided by one dominant principle- the best interests of the child. While courts have traditionally leaned toward mothers, particularly for younger children, the Constitution does not block fathers from getting custody.
In fact, there are clear circumstances under which courts grant custody to fathers, anchored on Article 53(2) of the Constitution and Children Act, 2022 (and earlier 2001 Act) that states both parents have equal parental responsibility, regardless of marital status.
Courts may grant custody to fathers where evidence shows that living with the father better serves the child’s welfare. Common situations include where the father has been living with the child for a long period, paying school fees and medical bills and actively involved in their daily care.
The court may find it disruptive to remove the child simply because of gender.
Fathers may get custody if the mother neglects the child, exposes them to harm, is abusive, struggles with drug and substance abuse or abandons the child, with courts, under such circumstances, focusing on child safety and stability not parental preference.
Where the father offers a more stable environment, courts may consider housing stability, school continuity and emotional support systems.
A father with consistent income, housing, and a support network including extended family may be favored over an unstable environment.
Also, where joint custody fails and the child expresses a clear preference, the father may be granted custody. Courts increasingly promote joint custody, but where cooperation breaks down and affects the child, one parent- sometimes the father- may be awarded sole custody to reduce conflict.
Why custody decisions for children aged 10 and above are difficult
Once a child is around 10 years or older, Kenyan courts often invite the child’s views- a situation that makes the cases more delicate and controversial.
The Children Act allows courts to consider the views of a child capable of forming an opinion. For children aged 10+, their preference carries persuasive weight, but is not decisive.
Judges must balance listening to the child without letting the child “decide” the case.
There is also the risk of parental influence that makes courts exercise utmost caution because the children may be coached or pressured, loyalty conflicts among children are common and the child’s fear of hurting one parent can distort preferences.
This makes it difficult for the courts to determine whether the child’s choice reflects genuine welfare concerns or emotional manipulation.
Older children, due to established routines, schools and friends, may resist change, even if the alternative is objectively better, which makes it hard for courts to order them taken elsewhere, unless there is a clear harm.
Lastly, Kenyan courts are careful not to traumatize children or turn custody disputes into interrogations (turning them into witnesses), limiting the weight placed on a child’s opinion, even when they are older.
Despite the law’s neutrality, cultural norms still view mothers as default caregivers with fathers required to provide stronger proof of suitability, requiring those seeking custody to demonstrate exceptional consistency, stability and emotional connection with the child.
Judges, in determining cases involving fathers and older children, must undertake a delicate balance between the child’s voice, protection from manipulation, stability versus change and equality of parents versus the reality.
