Legal Clinic: Can the court grant a caring father custody?

Hi Eric,

My wife and I married at a church wedding. We separated a year ago. I have been caring for my child since my wife comes from a low-income family and is jobless. I wish to know whether I can get custody of my child if went to court with such a request.

Dear Reader,

Promoting the child's best interest as an irreducible minimum and the prime principle of parenting as provided for in Article 53 (2) of the Kenyan Constitution is often a colossal task for single working parents and especially fathers. It isn't easier for working mothers too. Parenting is a triad process held together by legal tenets, human beings' biological functionality, and social values contextualised in different moral definitions. You are motivated by fatherly social values. First, you recognise that your estranged wife comes from a low-income family and understands her joblessness, which implies absence of reliable income. Your moral lenses and sensitivity do not allow you to resign your child into this pit of likely hopelessness. This concern speaks to the child's right as prescribed in Article 53 of the Constitution, which is made practicable by the threshold within the Children's Act.

You have not indicated the age or sex of your child. Therefore, it is difficult to state with certainty how the biological construction or infancy of this child sometimes defines the parenting protocols between you and the mother, even as we address the issue of custody. Secondly, there is no indication that you have consulted nor plan to consult the mother of this child. Remember, Article 53 (1-e) provides for the child's right to equal parental responsibility.

The law is deliberately blind to any prevailing parental circumstance, including their relational excesses and marital experiences. At this point, you need to know that the separation between the two of you should never be invited to reduce, threaten or injure the best interest of the child. Their right to education, parental, health and medical care, amongst others, must be the motivation to handle any misunderstanding that may arise between a mother and father. It should be understood that the law is a friend of the child and its protector and promoter in equal measure.

You demonstrate a high sense of parental care by seeking to know whether one can be rewarded a custodian for their child through the court. I am not sure this qualifies you as responsible. I will leave that to those who read and rate this response since it is not in my purview to state it. Custody, in law, means parental rights and duties related to a child's possession.

Custody, as reviewed within the confines of Section 81 of the Children's Act, could either be legal or actual. Legal custody is the parental rights and duties related to possession of a child, conferred upon a person by a court custody order. The custody question becomes an issue before a court of law, often when the couple who sired or adopted the child fails to agree on how to manage their affairs, hence rights of the child when disagreements and inconsistencies persist in their relationship. Actual custody is the real possession of a child.

Even for clarity of my own conscience, the response you seek should be cuddled within the legal or justice parameters of the child's best interest. Since such a request, delegating custody away from self to someone other than the mother of the child is rare and unprecedented. Custody in legal terms has legal expectations, and it is not an employer-nanny relationship.

The court, if approached, applies Section 83 (1) of the Children's Act. It requires the magistrate or judge to consider the following: the wishes of the child, wishes of the parents, guardians, foster parents or any other person who has custody of the child; cultural and religious background of the child, best interest of the child, parent-child relationship bond, parenting abilities of each individual, each parent mental, physical and emotional health, available support systems of each parent, etc.

There is no guarantee that the court will award custody to someone else if not the mother. It will demand that you demonstrate the mother's unsuitability to care for her own child, with your support since you are aware of her joblessness.

Should the court find your submissions compelling, it will likely leave you with legal custody and only award actual (physical) custody to the new caregiver. You appear to me, which is an impression every other mind may pick, as though you are absconding your parental responsibility.

Take your time to think through this. The court cannot assist you in abdicating your cardinal role as a father.

Eric Mukoya has over 17 years' experience working in Kenya and abroad within the social justice sector. He's the executive director of Undugu Society of Kenya. Legal query? Email [email protected]