We recently represented a mother, the Plaintiff, in MCCHCC/E2144/2024, a children matter before the Milimani Children Court in Nairobi where Judgement was rendered on 13th August, 2036. Our client is living and working in the United Kingdom and sought physical and actual custody, care and control of her seven-year-old child, who was living in Kenya with the father.

The case presented an important question in child custody disputes: where a child has been living with one parent in Kenya, can the Court grant physical custody to the other parent who lives abroad and what weight should the Court give to the wishes of the child?

The Court ultimately granted our client physical and actual custody, care and control of the minor.

The Case at a Glance
The parties had been in a relationship from which they had one child. Following their separation, the mother secured employment in the United Kingdom and relocated in 2023.

Before relocating, the parents agreed that the child would remain in Kenya with the father, with the assistance of his family, while the mother settled abroad. According to the mother, the understanding was that she would assume financial responsibility for the child while the father would facilitate reasonable access and communication between her and the child.

That arrangement subsequently broke down.

The mother testified that her access to the child became restricted. Upon returning to Kenya in November 2024, she encountered difficulties when attempting to see the child and even after seeking intervention from the Children’s Office. She later filed proceedings seeking, among other orders, physical and actual custody of the child, maintenance and the release of the child’s original birth certificate.

The father disputed allegations that he had denied the mother access to the child.

The Court was therefore required to determine questions of parental responsibility, legal custody, physical and actual custody, access and maintenance.

1. Legal Custody: Neither Parent Has a Superior Right

   The Court began by affirming the principle of equal parental responsibility.
   Under section 32 of the Children Act, 2022, both parents have parental responsibility over their child on an equal basis, regardless of whether the child was born within or outside marriage.

   Accordingly, the Court granted both parents equal legal custody.

   This meant that neither parent had a superior legal right over the child and that major decisions affecting the child including schooling and serious medical treatment were to be made through consultation and mutual agreement between the parents.

   The Court further encouraged the parents, notwithstanding their differences, to cultivate a positive working relationship capable of supporting the child’s holistic growth and development.

2. Physical Custody: The Power of the Child’s Voice

   The more difficult question was who should have physical and actual custody of the child.

   At the time of the proceedings, the mother lived in the United Kingdom while the child remained in Kenya. Although the father had actual custody, the Court’s interview with the child revealed that the child was in fact living with his paternal grandparents.
   The turning point in the case was the Court’s extensive interview with the seven-year-old child. During that interview, the child spoke fondly of his mother and remarked that she “looks like me.” More significantly, he expressed the hope that his mother would eventually come for him a wish which the Court noted he repeated towards the end of the interview without prompting.

   The child also informed the Court that he was experiencing bullying at school and had raised the issue with his father, who had indicated that he would move him to another school but never did.

   The Court considered the child’s wishes against the constitutional principle under Article 53(2) of the Constitution of Kenya that:
   “A child’s best interests are of paramount importance in every matter concerning the child.”

   Importantly, the child’s wishes were not considered in isolation. The Court acknowledged that the child’s welfare had to be evaluated against the prevailing circumstances of both parents and the child’s overall need for balance, growth and development.

   Having undertaken that assessment, the Court granted the mother physical and actual custody, care and control of the child.

3. The Father’s Right of Access

   Granting physical custody to the mother did not diminish the father’s parental role.
   The Court emphasised the importance of both parents remaining involved in the child’s life and granted the father access to the child, including access to the child’s school and medical records.

   This is an important distinction in children matters: physical custody does not amount to exclusive parenthood.
   A parent who does not have day-to-day physical custody ordinarily retains parental responsibility and legal custody and remains an important part of the child’s life.

4. Relocation to the United Kingdom

   The cross-border nature of the dispute was another significant aspect of the judgment.
   The mother’s residence in the United Kingdom did not, by itself, prevent the Court from granting her physical custody.

   However, the Court was careful to preserve the child’s relationship with his father.

   The judgment contemplated the child relocating to the United Kingdom with his mother, subject to safeguards concerning the father’s continuing access. The Court required prior notice of departure and provided that, where the child relocated, the mother was to facilitate his travel to Kenya for alternating Christmas holidays with the father in the circumstances set out in the judgment.

   The orders therefore sought to achieve two objectives simultaneously: allowing the child to live with his mother in accordance with the custody determination while preserving a meaningful relationship with his father and extended family.

5. Maintenance and Shared Parental Responsibility

   The Court also reiterated that maintenance is a joint parental responsibility.
   Article 53(1)(e) of the Constitution and the Children Act recognise the responsibility of both parents to provide for their child. In determining the appropriate financial arrangements, the Court considered the parties’ respective circumstances and the needs of the child.

Key Takeaways from the Decision
The child’s best interests remain paramount. Custody disputes are ultimately determined by what best serves the welfare of the particular child, rather than what is most convenient or desirable for either parent.

The voice of the child matters. Where a child is capable of expressing his or her wishes, those views may form an important part of the Court’s assessment. They are not necessarily determinative on their own, but they must be considered within the child’s overall circumstances.

Legal custody and physical custody are different. A parent may obtain physical and actual custody while both parents continue to share legal custody and parental responsibility.

Living abroad is not an automatic bar to physical custody. A parent’s geographical location is only one factor in the wider assessment of the child’s welfare. The Court may grant physical custody to a parent living outside Kenya where the circumstances and the child’s best interests justify it.

Existing care arrangements are not necessarily decisive. The fact that a child has been living with one parent does not automatically mean that the arrangement must continue. The Court must examine the reality of the child’s circumstances and determine what arrangement best serves the child’s welfare.

Cross-border custody requires careful access arrangements. Where a child is to live outside Kenya, the Court may impose safeguards to ensure that the child’s relationship with the parent remaining in Kenya is preserved.

Conclusion
This judgment is a powerful reminder that child custody is not a prize awarded to the parent with geographical home advantage. The Court’s true compass remains the child’s best interests, assessed holistically against the circumstances of each individual case. Sometimes, an important part of determining those best interests is doing something remarkably simple, listening to the child.

At P. A. Kwega & Co. Advocates, we advise and represent clients in matters involving child custody and access, child maintenance, parental responsibility, cross-border relocation disputes and complex family law litigation.

If you are dealing with a child custody, access, maintenance or cross-border relocation dispute, obtaining legal advice at an early stage can be critical. The strategy adopted at the outset can significantly affect how the matter develops.

Seek legal advice early. We will guide you through the process and walk with you.