The society in which children grow up shapes who they are. Having both a mother and father involved in a child’s life can provide significant social, psychological, and health benefits. The stability of having a relationship with both parents can give security and greater opportunities for children to find their own paths to success. Even if circumstances warrant separation of the parents, co-parenting should allow both parents to raise the child.

Legal Issues Around Co-parenting in Kenya

Still, like in many countries, co-parenting in Kenya comes with social and legal issues that may require a court’s intervention. These issues include:

Custody and access: Determining who should have legal custody of the child and the visitation rights of the non-custodial parent.

Child maintenance and or upkeep: Ascertaining and enforcing child maintenance and or upkeep.

Parental Rights: Occasionally, one parent may try to limit or deny the other parent’s rights to the child leading to legal disputes.

Relocation: A parent may wish to move with the child, thus affecting the co-parenting arrangement.

Disputes over parenting agreements: Creating a parenting agreement that outlines the responsibilities of each parent can be challenging and may require legal assistance to ensure it is fair and enforceable.

Complex legal procedures: Understanding the legal procedures and requirements for dealing with co-parenting disputes and issues, such as going through the Children Court system, can be complicated.

The Children Act provides a legal framework for co-parenting, varying from case to case. The Act emphasizes on the best interests and welfare of the child, and here are some key provisions related to co-parenting in Kenya:

Parental Responsibility: The Children Act in Section 30 to 34 stresses that both parents share parental responsibility for their children. This means that both parents are responsible for the child’s upbringing and welfare. The Court, if it deems fit, may upon request, extend parental responsibility beyond the age of 18 years in accordance with Section 35.

Best Interests of the Child: The Act strongly emphasizes that all actions concerning children must consider the best interests of the child. In matters of co-parenting, the court will consider what arrangement is best for the child’s physical, emotional, and psychological well-being. The concept of the child’s best interest is flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child considering their personal context, situation, and needs.

Custody, Care and Control: This means actual physical possession of the child under section 101. A Custody Order for the physical care of the child may vest in a person referred to as the custodian under Section 102. The custodian may either be the parent or guardian. The best interest of a Child is factored in when making an order on custody. The order may be revoked under section 107 of the Act.

Legal custody: This refers to the parental rights and duties in relation to possession of a child conferred upon a person by a custody order; section 2.

Actual custody: Means the actual physical possession of a child. It does not matter whether that possession is shared with one or more persons or not. Section 2

Access Order: The order allows the non-custodial parent reasonable access to the child. This includes visitation rights and communication with the child. It is one of the orders the Court may make under section 135 (1) (a).

Child maintenance and or upkeep: The Act provides for the obligation of both parents to provide financial support for their children under section 110. The court can issue orders for child maintenance and or upkeep, and the amount is determined based on the child’s needs and the parents’ financial capacity. Other orders that the Court may give with respect to maintenance of a child are found under section 118.

Approaches to Easy Co-parenting

This article appreciates that co-parenting can be challenging, but it is essential for the well-being of your child. Here are some tips to easy co-parenting in Kenya:

• Maintain open, honest, and respectful communication with your co-parent with your conversations being child-focused.
• Establish consistent routines and rules across both households to provide stability for your child.
• Prioritize your child’s best interests.
• Be flexible and find solutions that work for both of you and your child.
• Develop a clear and comprehensive parenting agreement that outlines responsibilities, visitation schedules, and decision-making processes.
• Respect each other’s boundaries and privacy. Avoid interfering in your co-parent’s personal life.
• Encourage your child’s relationship with the other parent. Speak positively about your co-parent in front of your
  child
• Keep records of communication, visitation schedules, and important documents to ensure everything is clear and documented.
• Consider a parental responsibility agreement

Parental Responsibility Agreement

Having both a mother and father involved in a child’s life can provide significant social, psychological, and health benefits. The stability of having a relationship with both parents can give security and greater opportunities for children to find their own paths to success. Supreme Court of Kenya, MAK v RMAA & 4 Others [2023] KESC 21.

It’s important for co-parents to be aware of their legal rights and responsibilities, seek legal counsel when necessary, and consider alternative dispute resolution methods like mediation to address challenges to co-parenting. Kenyan law encourages dispute resolution through negotiation, mediation, or alternative methods before resorting to litigation in court.

One way to easily resolve co-parenting disputes is by negotiating a parenting responsibility agreement. It is not in the best interest of a child when parents are engaged in protracted court battles. Court battles over children are more often than not very selfish in nature and it is easy to overlook the psychological and mental harm to the child in the process. Parenting responsibility agreements will outline each parent’s rights and responsibilities over the child. It could cover issues like maintenance, custody, and visitation rights for each parent.

If parents fail to agree or violate the parental responsibility agreement then either or both parents may approach the court for orders over the child.

Court orders on co-parenting in Kenya

Even if circumstances warrant limited access to a parent, a court should order supervised access. Usually, in making co-parenting orders, the court will consider the unique circumstances of each child including:

• The existence of a PRA between the parties.
• The past performance of each parent
• Each parent’s presence including his or her ability to guide the child and provide for the child’s overall well-being.
• The ascertainable wishes of a child who was capable of giving/expressing his/her opinion.
• The financial status of each parent.
• The individual needs of each child.
• The quality of the available home environment.
• Need to preserve personal relations and direct contact with the child by both parents unless it was not in the best interests of the child in which case supervised access to the child was to be granted
• Need to ensure that children were not placed in alternative care unnecessarily.
• The mental health of the parents.
• The totality of the circumstances.

(See, Supreme Court of Kenya, MAK v RMAA & 4 Others [2023] KESC 21)

If you need help drafting a parental responsibility agreement or encounter legal issues or disputes that cannot be resolved amicably, consult with a family lawyer for guidance. Our family law experts at Bond Advocates LLP have many years of experience helping families to resolve co-parenting disputes amicably or through the court process as a last option.

Njoki Ngari is a partner and Head of Family Law and Private Client practice at Bond Advocates LLP. Her contact is njokingari@bondadvocates.com