Child custody in Kenya: legal, physical and joint custody, and how courts decide
Judiciary; Children Act 2022 · sources read 4 Oct 2026
The Children's Court decides custody by what is best for the child, after weighing things like each parent's conduct and wishes, the child's own wishes and any risk of harm. It can give legal custody to one parent or both, and the parent who does not get custody can still keep rights such as access to the child.
- Where
- The Children's Court at any Magistrate's court (Milimani in Nairobi and Tononoka in Mombasa are dedicated Children's Courts).
Steps
- Legal custody: a court order giving a person a parent's rights and responsibilities over the child for a set period.
- Actual (physical) custody: who the child lives with and who cares for them day to day. It can be held by one person or jointly.
- Apply to the Children's Court. Every Magistrate's court handles children matters, and Milimani and Tononoka are dedicated Children's Courts.
- The court looks at each parent's conduct and wishes, relatives' wishes, the child's wishes (as fits their age), any harm or risk of harm, and the child's best interest.
- If one parent gets custody, the court can still give the other parent rights and duties, including access to the child on terms it sets.
Watch out
- An interim (temporary) custody order cannot last more than 12 months, and the court can review or change it.
- Parents can agree on custody between themselves, but the court will not enforce an agreement that is not in the child's best interest.
- If you share custody under a court order and cannot agree on a decision, either of you can go back to court to settle it.
Who this covers
- A parent or guardian can apply. So can someone who has looked after the child for 3 years with a parent's consent, or anyone who can show good reason.
Official sources (3)
- Children Act, No. 29 of 2022 childrenservices.go.ke · read 4 Oct 2026
- Constitution of Kenya, 2010 parliament.go.ke · read 4 Oct 2026
- Magistrate Courts judiciary.go.ke · read 4 Oct 2026