I have heard that children have a right to say which parent they wish to live with during custody hearing. If this is so, does the court consider the child’s age?
Your question is reasonable ground for a dissertation questioning a child’s decision-making freedom and right. Decision making is a concept that fundamentally separates adults from children. The separation is what could have inspired the wisdom of the drafters of law to have coined the term minor.
In Kenya anyone below the age of 18 is a child, as provided for in Section 2 of the Age of Majority Act. A child in Kenya is a human package that is formed and defined on the principle of care, protection, guidance and love amongst others.
It is a bundle where the powers to make decisions and choices is delegated to adults, mostly parents. This is because children are a special class of human beings owing their limited capacities for many things including decision making.
From the realisation that capacity in children is sometimes absent or limited, people must depart from the common misconception that a child may reach certain age other than turning 18 to decide which parent to live with, in situation of divorce and separation.
At the point of separation, the court is often called in to adjudicate when couples fail to find consensus on fundamental issues such as custody.
Article 53(2) of the Constitution stipulates that the Child's best interest is of paramount importance in every matter concerning it. A child's best interest is majorly considered by a court seized with the question of custody, guardianship, maintenance, adoption of the child and other issues.
The law outlines a set of factors for magistrates to consider when determining how to allocate custody in divorce and separation cases. Most courts may consider a child's opinion, but only if the magistrate believes that the child is mature enough to express a reasonable preference and can be able to form an intelligent opinion.
There's a presumption a child 12 or above is old enough. The court considers the reasonable preference of a child 12 years or older. This however does not mean that the court cannot hear the preference of a younger child.
In addition to a child's opinion, the court must also consider a variety of other factors before deciding where the child will live after a divorce or separation. The court evaluates the following: the love, affection, and relationship between the child and each parent, each parent's ability to provide the child with food, clothing, and a safe home, the health and mental wellness of each parent and the child, each parent's willingness to facilitate a relationship between the child and the other parent, whether there is a history of domestic or child abuse, how long the child has been in a stable home and the parent's desire to continue that arrangement, each parent's preference, the child's age and individual needs, whether either parent has a history of drug or alcohol abuse, if there's a history of either parent interfering with the other's parenting or visitation rights, each parent's moral fitness, and the child's educational, social, and community record.
Children cannot fully decide which parent to be with. The rationale for this, has been established to be that children dealing with divorcing or separating parents already have enough to worry about knowing that their parents are no longer living together.
Most kids wonder where they will sleep every night, whether they will have a bedroom in each of the new homes, and whether they did something wrong to cause the divorce. It is a fact that children thrive in stable, loving, and healthy environments, so when parents’ divorce, it's the court's job, not the child's, to decide which parent can provide the best environment for the child.
There are many reasons why courts don't automatically accept a child's preference for custody. For example: a child may choose to live with the parent who has more money, a nicer vehicle, or a bigger home, the child might be torn and decide that living with the parent who needs the child is important, even if that parent isn't prepared to care for the child full-time, a child may choose to live with the “cool/fun” parent because that parent provides gifts, vacations, or large allowances during parenting time, or the child may want to live with one parent over the other because one parent alienated the child from the other during the divorce.
In nearly every custody case, the best option is for the parents to come together and create a parenting plan that benefits everyone the family. Parents can often agree on a custody arrangement and also develop an acceptable visitation schedule between the child and the non-custodial parent.
The court may review the agreement, but if it's in the child's best interest, the magistrate will almost always approve it. Up to and until a child is 18, their capacity to decide with whom to stay is a prerogative of the court, or parents within a Parental plan.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
