It is not uncommon to encounter individuals who reveal that they were raised by their grandparents, even though their biological parents are alive. However, while it can be a part of the social fabric for grandparents to assume custody and raise their grandchildren, the law primarily recognizes the express custody rights of biological parents.
Introduction
Consequently, in complex family situations such as separation, divorce, or death, grandparents may find themselves entangled in difficult legal battles as they seek custody of their grandchildren.
This article examines the various situations where grandparents were permitted to have custody of the child despite a living parent.
The Prevailing Principle Governing Custody of Children
Under Article 53(e) of the Constitution of Kenya (2010), every child has the right to parental care and protection, which includes the equal responsibility of both the mother and father to provide for the child, irrespective of their marital status. A literal interpretation of this provision suggests that custody primarily rests with the biological parents.
Constitutional and International Framework
This position is reinforced by Article 19 of the African Charter on the Rights and Welfare of the Child, which provides that a child is entitled to parental care and protection and should not be separated from his or her parents except when a judicial authority, acting in accordance with the relevant law, determines that such separation is in the best interest of the child.
Similarly, Article 7 of the United Nations Convention on the Rights of the Child further affirms the child's right to know and be cared for by his or her parents.
The Prevailing Legal Principle: Custody should ordinarily be granted to the parents.
The Exception
There are certain situations where the courts will divert from the prevailing principle. The exception is usually where the best interests of the child are hindered if custody is granted to the child's biological parents. This would be a situation where it can be proved that a parent is not suitable or is incapable of caring for the child.
MAK v RMAA & 4 others (2023)
This was echoed in the Supreme Court case of MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023] KESC 21 (KLR) (2 March 2023) (Judgment).
Case Example: Ramadhan Ali Athman v Peter Mwingo Chirima (2020)
In Ramadhan Ali Athman v Peter Mwingo Chirima [2020] eKLR, the High Court at Mombasa upheld the trial court's decision to grant custody to a minor's maternal grandparents as opposed to the father who was the surviving parent to the minor.
The Court's ratio decidendi was that the surviving parent had abdicated his parental responsibilities, and since the demise of the biological mother, the children had been residing with their grandmother. Consequently, the Court held that it was in the best interests of the children for them to remain in the physical custody of their grandmother.
The Procedure and Considerations Applied by Court
As discussed above, grandparents do not have an inherent right to custody, and the exception outlined is not automatic. Custody must be formally applied for and justified based on the specific circumstances of the case.
Section 103 of the Children Act
In line with this, and with reference to Section 103 of the Children Act, the Act outlines principles that courts must consider when granting custody to any person applying for it. These principles include:
- The conduct and wishes of the parent or guardian of the child
- The ascertainable wishes of the relatives of the child
- The ascertainable wishes of the child taking into account the child's evolving capacity
- Whether the child has suffered any harm or is likely to suffer any harm if the order is not made
- The customs of the community to which the child belongs
- The religious persuasion of the child
- Whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force
- The circumstances of any sibling of the child concerned, and of any other children of the home
- The best interest of the child
The Paramount Consideration
Although the above act as guiding points, the most paramount consideration is the best interests of the child. Reinforcing this position, the Court of Appeal at Nairobi, in LAC & another v MJC (Civil Appeal E119 of 2021) [2022] KECA 68 (KLR) (4 February 2022), observed that the welfare of the child has constitutional significance in Kenya.
Constitutional Significance
The court highlighted that Article 53(2) of the Constitution of Kenya, 2010, provides that: "a child's best interests are of paramount importance in every matter concerning the child."
No Fixed Definition
Whereas courts place primacy on the best interests of the child, they also recognize that there is no fixed definition of what constitutes the "best interests of the child." Rather, these interests are determined based on the specific circumstances of each case as they relate to the child.
Recent Affirmations
This position was affirmed in re KWW (Minor) (Family Miscellaneous Application E126 of 2024) [2025] KEHC 3335 (KLR) (Family) (20 March 2025) (Judgment).
In addition to, the High Court at Nairobi reiterated this principle in AKC v TWM (Civil Appeal E150 of 2023) [2025] KEHC 4810 (KLR) (Family) (28 March 2025) (Judgment), noting that the determination of a child's best interests depends on the particular circumstances of the case.
Critical Principle: Bearing this in mind, the requirement of acting in the best interests of the child becomes a crucial principle for a grandparent to demonstrate in order to be granted custody.
Practical Implications
For Grandparents Seeking Custody
What You Need to Demonstrate
- Evidence of the parent's inability or unwillingness to care for the child
- Established relationship and bond with the grandchild
- Ability to provide a stable and nurturing environment
- The child's wishes (where the child is of sufficient age and maturity)
- Evidence of harm or potential harm if custody is granted to the parent
- Current caregiving arrangements and the child's adjustment
For Parents Facing Custody Challenges
Protecting Your Parental Rights
- Demonstrate active involvement in the child's life
- Show ability and willingness to provide care
- Address any concerns raised about suitability
- Maintain consistent contact and support
- Provide evidence of a stable home environment
The Legal Process
1. Application
Grandparents must file a formal application in the appropriate court, typically the Children's Court or Family Division of the High Court.
2. Evidence
Comprehensive evidence must be presented addressing all factors under Section 103 of the Children Act.
3. Best Interests Analysis
The court will conduct a thorough analysis of what serves the child's best interests in the particular circumstances.
4. Court Decision
The court will make a determination based on the totality of evidence and circumstances presented.
Conclusion
It is settled law that children have a constitutional right to live with their biological parents for their well-being, and this right can be limited only in the presence of compelling reasons.
Consequently, grandparents do not have a constitutional or statutory right to custody of their grandchildren unless they formally apply to the court, and it is determined to be in the best interest of the child to be placed in their care.
Key Takeaway: While the law recognizes the primacy of parental custody, it is not absolute. Where the best interests of the child require it, courts will grant custody to grandparents who can demonstrate that such an arrangement serves the child's welfare better than placement with the biological parents.
Looking Forward
The evolving jurisprudence on grandparents' custody rights reflects the courts' commitment to child-centered decision-making. Each case is assessed on its unique circumstances, with the child's welfare as the guiding star.
For legal practitioners handling these sensitive matters, a comprehensive understanding of both the statutory framework and judicial precedents is essential. For families navigating these situations, early legal advice and a focus on demonstrating the child's best interests will be crucial to achieving favorable outcomes.
