A parental responsibility agreement is an arrangement that is arrived at by two parents who no longer reside together. It is provided for in The Children’s Act section 26. It is mainly drawn up in order to ensure the best interests of the child are met by both parents. Parental responsibility agreement offers ease to both parties in identifying the clear roles they are required to play in their children’s lives.
According to the Constitution of Kenya, 2010 Article 53, both parents have joint legal custody of the child. This infers a responsibility on both parents in the bringing up of the children. Hence, the need to reach an amicable agreement. The agreement simply outlines the parents’ rights and responsibilities over the child. It includes the ability to make decisions on behalf of the child until they attain the age of majority.
Both parents have equal parental responsibility where the child is born during the marriage of both parties. However, where the parents weren’t married, parental responsibility automatically vests upon the mother at first instance. The father assumes parental responsibility if they had cohabited for a period amounting to 12 months or if he had acknowledged paternity of the child or maintained the child.
What happens when the parents are not married?
What happens where the parents are not married and the father has not assumed responsibility over his child? Parental responsibility will vest solely on the mother. The father has to obtain an order from the court declaring that he shall have parental responsibility or enter into a parental responsibility agreement with the mother. The former is quite time consuming because it involves lengthy court processes. Therefore, a parental responsibility agreement would be preferred. In the absence of an agreement that was amicably reached by the two parties, the parties will have to initiate child custody and maintenance proceedings in court.
The agreement can be drawn up with the help of lawyers and it contains three key issues to be determined; Custody, Maintenance and Access. In these three categories it is important to note that the mother and father of the child have responsibilities over the child and they should be shared equally.
Custody
The agreement will clearly outline whom custody of the child vests in. A parent can either have legal custody or actual custody or both. Legal custody refers to the parental rights and duties in relation to possession of a child as are conferred upon a person by a custody order. Actual custody refers to the physical possession of the child which can be shared by the parents. The person who is granted actual custody will live with the child. This will be determined by considering the best interest of the child. As a general rule, the judge in (HG G v Y P [2017] eKLR) stated that mothers are usually given the legal custody of children of tender years unless there are exceptional circumstances not to do so. The consideration of the gender of the child will also affect the decision on custody of the children.
Maintenance of the child
The second issue to be determined in the agreement is the Maintenance of the child. This part of the agreement caters to the expenses of the child such as food, shelter, clothing, education and medical needs. It is the responsibility of both parents to maintain the child according to the Constitution Article 53(1)(e). It outline each parents role in maintaining the child. The financial ability of each parent will be considered. The maintenance does not cater to the expenses of the mother/father as their upkeep but it is specifically geared to the children. It also confers the duty to protect the child from neglect, abuse, and discrimination on the parents and gives them the right to give parental guidance in religious, social, moral and cultural matters.
Provision of access
Finally, the agreement will also cater for the provision of access. Access refers to the legal right of the child and a parent to spend time together. Access will usually cater to the parent who does not have actual custody of the children. The agreement will outline the parent’s visitation arrangements as agreed upon by the parties.
Once both parents have drawn up the agreement with respect to the limits and extent of their co-parenting agreement, it can be adopted by the court as a court order. This is particularly important because it gives the agreement legal force. In case of any violation of the agreement either by overstepping of either of the parent or default, the parent will be held liable for defying court orders.
It is advisable to take up this option of adopting a parental responsibility agreement if you are divorced or are no longer together with the father/mother of your child because the dynamics of co-parenting can be a burden. The agreement comes in to simplify the duties and responsibilities of each parent in a simple and legally binding way. In addition to this, it is a more secure way to ensure that your child is catered for by their father/mother at your own terms.