Legal custody may be awarded to the parent with stronger financial muscle, accompanied by structured visitation or access rights.
Dear Wakili,
How would custody be determined in a situation where both parents demonstrate extremities: One can materially provide, but is very distant in loving the child, while the other demonstrates genuine love for the children, but is not well endowed materially?
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Children, in whichever form, context, or circumstance, do not lose the vulnerability tag. A minor remains a minor, irrespective of the state of affairs between the child and the society expected to nurture it. This is precisely why the best‑interest principle occupies such a large and commanding space in the Constitution and in statutes. Its significance is not only directly promulgated in the Constitution and the Children’s Act (2022), but also enacted across various other statutes that touch on children’s welfare.
Article 53(2) of the Constitution and Section 8 of the Children’s Act make Kenyan law unequivocally protective of children. These provisions affirm that children are the centre piece of their own wellness, where their parents’ wealth, gender, and preferences only become facilitative instruments. The best interests of the child form the crest of the threshold that defines children’s rights, welfare, and societal positioning, thereby overriding all other considerations. It is the lens through which every decision concerning a child, including custody determination must be examined.
As a Kenyan society, we are reminded of the obligation placed on us by law, but more fundamentally by biology, spirituality, and morality, which demand that we support the life we bring forth. Article 53(1)(f) directs parents to function as an equal parenting system that ensures no child suffers avoidable loss, disadvantage, or difficulty, regardless of whether their capacities make the role light or heavy. Courts, and indeed the general public, recognise the differentiated strengths of fathers and mothers. This recognition is one reason custody is reflected in three dimensions: Actual custody, legal custody, and joint custody.
In a situation where one parent demonstrates strong material capacity but emotional distance, while the other shows genuine affection but limited financial means, Kenyan courts do not treat these factors as competing interests. Instead, they treat them as foundational concerns in situating the child’s wellbeing within judicial decision‑making. Courts are likely to evaluate how each factor enhances or diminishes the child’s holistic welfare, including emotional security, developmental stability, and continuity of care.
Emotional security is fundamentally the first step toward peace for any individual, regardless of age. It is equally true that material wealth can reduce factors that cause or exacerbate emotional insecurity. Recognising this, the court in MCO v DOO (2024) affirmed that the best interests of the child include emotional security and social development, and that custody decisions must consider the psychological effects of parental behaviour on the child. The implication of this assertion is the debunking of assumptions that a parent who is materially capable but emotionally distant could automatically be favoured for custody. The commanding caution is that emotional neglect can be as harmful as material deprivation, especially for young or vulnerable children.
Financial power is not belittled, but neither is it worshipped when courts make decisions. Parenting is recognised as a shared obligation under Section 32 of the Children’s Act, meaning each parent’s financial contribution finds space within the best‑interest analysis. As established in JKN v HWN (2014) and reaffirmed by Justice Mbungi in FOC v ES & Others (2026), financial ability is relevant but not determinative, since the court does not double as a field for proving or contesting spousal economic superiority.
The age of a minor determines two things: Their opportunity to express a preference regarding where they would find care, protection, stability, consistency, and love; and their biological vulnerability and developmental needs, as canvassed in KF v NB (Civil Appeal 15 of 2021). Courts have applied these considerations repeatedly when contextualising the best‑interest principle. The latter consideration is often referred to as the tender‑years doctrine, which tends to prioritise mothers as caregivers for children of tender years. However, this doctrine is not absolute. It can be challenged where evidence shows the mother is unsuitable, as settled by the Court of Appeal in J.O. v S.A.O (2016).
Considering these arguments, which establish practical measures and standards through which actual and legal custody may be awarded, a court is likely to create a balance that allows both parents to participate based on the advantages of their presence and the significance of their absence. Courts underscore the importance of consistency in a child’s growth and development. They are likely to be guided by lived experience, examining which parent has been the primary caregiver prior to and during the dispute. The parent who provides daily care, emotional support, and stability stands a strong chance of receiving actual custody.
Because a child’s development requires financial support, particularly for education, healthcare, and basic needs, courts incorporate financial capacity into their decisions. Legal custody may be awarded to the parent with stronger financial muscle, accompanied by structured visitation or access rights and maintenance orders designed to protect the child’s emotional welfare. Courts may also lean toward joint custody, which promotes the child’s best interests while ensuring both parents participate meaningfully in the child’s development.
In conclusion, a family court handling children’s matters cannot become a venue for spouses to settle personal differences or compete for superiority. It is a protective buffer that revolves entirely around the child’s wellbeing.
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