We’re co-parenting, why does my husband want me to sign a parental responsibility agreement?

Hi Eric,

My ex-husband and I are co-parenting. He suggested we sign a parental responsibility agreement. Could you explain what such an agreement entails?

Parenting and adulting are concepts that require social maturity and legal shrewdness.

Parental responsibility agreements are premised on several assumptions: a child, irrespective of the circumstances leading to their birth and the absence of either parent, must not suffer any emotional, physical, or economic loss. It is either preventive or curative action based on its best interest, as provided for in Article 53 Clause 2 of the Constitution: that practical promises are key to child-parent relationships.

This is covered in Article 53 Clause 1, paragraph (e): motivation to fulfil promises can be complex; therefore, an agreement is needed to ensure that commitments are met, whether to children, friends, or spouses. Compare this to a business contract; an offspring must not hinder the parents' ability to continue finding more fulfilling ties and life movements, especially when relationships face irreconcilable difficulties.

Children's Act's Section 33, subsection (1) directs parents who remain unmarried to each other to consider parental responsibility agreements, documented in a designated form, clearly stating individual responsibilities towards the child's rights and welfare.

Parental responsibility agreement has terms defining and allocating several actions relevant to a child's wellness, as follows: determining the appropriate and the length of time each parent may spend with it: how joint decisions are to be made regarding its well-being, including religious upbringing: the contact information, especially residence and phone numbers, which are central to the visitation schedule for the parent without actual custody, including arranging of holiday and school breaks. Related is the notification of parental movement in cases where either or both change physical addresses.

This agreement also provides when and why a child should be transported outside the country. Another primary term of a parental responsibility agreement is allocating either parent's role to provide health insurance and related healthcare services. Similarly, this agreement could sum up decisions to educate the child, including expenses for extra-curricular activities.

Parental responsibility agreement seeks to fulfill the roles defined and assigned within the principle of equal parenting, as stated in Section 32 of the Children's Act. It states that in line with the set principles and directives given in the Act, every parent shall have equal parental responsibility over the child. Two things are essential; none of the two is superior, and therefore, cannot demand more rights and privileges than the other.

Secondly, it does not matter for the child to be born out of wedlock. It's not the system into which the child was conceived and born but their inherent human dignity, as Article 28 of the Constitution demands. It is assumed that anyone holding and expected to perform terms within a parental responsibility agreement must respect it. Section 32, subsection (3) establishes the breach and offense.

It clearly states that anyone with parental responsibility over a child must not act in ways that contradict a competent court’s order as created within the limits of the Children’s Act. In this spirit, Section 33, subsection (5), cautions against breach, which is equated to an order of the court.

Some of the offenses include hindering a parent with visitation rights from accessing their child. Abduction of a child or reducing or constricting the opportunities provided by the agreement to the visiting parent to carry out the related duty. Subsection (6) further creates another offence: failing to notify the parent of the legal custody change of residential address for which they rely to execute their visitation rights. Each of the afore-described offences has a price of a one-year jail term if one is found guilty.

However, the first two have a fine not exceeding Sh500,000, while the immediate third attracts Sh200,000. In some circumstances, the honourable magistrate or judge could impose a fine and jail term.

Although the court allows for temporary arrangements for a caretaker in the absence of a person with parental responsibility, it is a primary rule that such duties cannot be relinquished or reassigned to another person unless with express understanding with the other parent.

In Children’s Appeal Case E 001 of 2024, Justice Odera, argued that though the children are still in tender years, the circumstances are exceptional as both parents have moved on with new spouses, and the parental responsibility agreement seemed to have worked well for both parties until when respondent got wind that the appellant had moved on. Based on the evidence on record, I am satisfied that the child I.O. has a strong relationship with the father, with whom he has stayed since 2022. The parental responsibility agreement dated March 15, 2022 was valid when the suit was filed in the lower court. He went further and varied the parental responsibility agreement.