The legal aspect of child custody

  

Date Posted: 2/3/2013 11:20:26 PM

Posted By: warira  Membership Level: Gold  Total Points: 1095

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The issue of child custody is very sensitive to those involved. It is a contentious issue especially for those parents who are separating or divorcing. Many are the times that the issue cannot be settled harmoniously at home and it becomes a court matter. In light of this the legislators have drafted and enacted laws to deal with this matter with the seriousness it deserves.

Custody under the Children’s Act is defined to mean those parental rights and duties as relates to the possession of a child, whereas, care and control is the actual possession of a child whether or not that possession is shared with one or more persons.
We have two types of custody: legal custody which is the parental rights and duties in relation to possession of a child as are conferred upon a person by a custody order while actual custody is the actual possession of a child.

Joint custody is when there is actual physical custody between two or more persons as one can also have both legal and actual custody.
A custody order is the court order given to an applicant seeking the custody of a child. The person who is given the custody order is known as the custodian of the child.

Not every one can be given custody of the child and the following are the only persons who can apply for a child’s custody:
1. A parent
2. A guardian
3. A person who applies with the consent of the child’s parents or guardian and has lived with the child for three months prior to the application.
4. For those not falling under (1)(2)(3) and satisfies the court that they deserve to be given custody over the child.
Child custody is a discretionary matter in the court although the Children’s Act Section 83 under Slays down the guiding principles for the court. The following

principles should be taken into account:
1. The conduct and wishes of the parent or guardian of the child.
2. The wishes of the relatives of the child.
3. The wishes of the foster parent or any other person who has actual custody of the child and has lived with him/her for three years prior to the application.
4. The wishes of the child
5. Whether the child has suffered any harm or is likely to suffer any harm if the custody order is not granted.
6. Customs of the community to which the child belongs.
7. Religious persuasion of the child.
8. Whether care orders, supervision orders, personal protection orders or exclusion orders have been made and are in force.
9. Circumstances of any sibling of the child concerned and other children of the home.
10. The best interests of the child.
Where two parents are concerned they should decide between themselves who is best suited to have the custody of their child(ren). The court is under discretion to enforce this decision as long as it is in the best interests of the child.
Where there are two parents or guardians and only one has been granted the custody the other only acquires the rights and duties in relation to the child.Upon the death of the parent in custody of the child dies the other parent does not become automatically become the custodian of the child except with the leave of the court. The deceased parent might have appointed a guardian and if not the court will appoint one.
Generally children of tenders years are kept under custody of their mothers unless there is sufficient evidence to discredit the mother although the Subordinate Courts( Separation and Maintenance) Act enables a woman to seek custody for a child below 16 years.

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