15 Sep WHAT IS CUSTODY

Posted at 07:27h in Article, Family Law by

Custody means the parental rights and duties that relate to the possession of the child. There are two types of custody: actual custody and legal custody. Actual custody means the actual possession of a child. A parent who has actual custody of a child lives with the child and tends to his or her day-to-day needs.

Legal custody refers to a parent’s right to make important decisions relating to the child. These include decisions about which school the child will go to, in which country the child will live or what type of medical care he or she will receive.

Custody may be awarded jointly or solely. This means that both types of custody can be awarded to both parents together or retained by one parent alone.

Joint actual custody is where both parents have rights of possession of the child for certain amounts of time, for example, alternating blocked time, where one parent lives with the child for one week then the child goes to live with the other parent for the other week or one parent lives with the child during the school term and the other parent lives with the child during some weekends and the school holidays. Where one parent lives with the child, the other parent can visit the child as agreed on by the parents or ordered by the court. At all times the convenience and comfort of the child must be considered.

Joint legal custody is where both parents have the right to participate in the major decisions concerning the child. Sole custody is where only one parent makes all of the decisions concerning the child without having to consult the other parent.

How to share custody

The Parental Responsibility Agreement

Parents can formally agree on how to share custody by signing a Parental Responsibility Agreement (PRA). A PRA is an agreement between the parents which sets out the rights and responsibilities of the parents towards their children, it will provide for how actual custody of the children will be shared, set out access modalities and deal with issues of maintenance of the children.

This process is more favored as the parents retain control of their intentions and decisions over their children. It is generally more harmonious.

Court Process

The parents may also file an application in the Children’s Court for the court to decide who should have custody and/or how they should share custody. It is advisable that such parents consult with an advocate who is experienced in children custody matters, as the proceedings can get complicated.

Who can be awarded custody by the court?

Custody may be awarded to a parent or guardian of the child. Custody may also be awarded to someone who has had actual custody of the child for at least three years, provided they have obtained the consent of a parent/guardian of the child to apply for custody or such consent has been waived by court.

It is a generally accepted rule that actual custody of children of tender years (children under ten years) should be given to the mother, except where there are exceptional circumstances. Such circumstances include where the mother is an unsuitable person and where she is unfit to have the care and custody of a child.

It is important to note however that the fundamental consideration is always the best interests of the child.

Factors considered by the court in making a custody Order

The Law governing child custody is the Children Act of 2022 and it empowers courts to make a custody order. The Act, under section 103, also guides courts on how to award custody by listing principles to be applied when making a custody order. These principles include:

  • the conduct and wishes of the parent or guardian of the child;
  • the ascertainable wishes of the relatives of the child;
  • the ascertainable wishes of the child taking into account the child’s evolving capacity;
  • whether the child has suffered any harm or is likely to suffer any harm if the order is not made;
  • the circumstances of any sibling of the child concerned, and of any other children of the home, if any;
  • the best interest of the child.

The information above is not nor is it intended to be specific legal advice. This website is designed for general information only. You should consult an advocate for advice regarding your specific situation. We invite you to contact us about your family law situation and welcome your calls, letters and emails.

Author: Victoria Muthama