A court has declined a man's request to order his estranged wife to allow the baptism of their seven-year-old daughter according to his faith.
A court has declined a man's request to order his estranged wife to allow the baptism of their seven-year-old daughter according to his faith.
The man also wanted the court to bar his former parents-in-law from interfering with the minor's affairs and influencing her upbringing.
But Justice Erick Ogolla failed to issue an express order for the baptism of the minor in the Catholic Church as per the man's desire and instead directed the estranged couple to make the decision.
He also declined to bar the minor's grandparents from interfering with the child's affairs.
"All decisions regarding the welfare of the minor, such as school, medical care, and spiritual welfare, shall be made solely by the parties," said the judge.
Regarding the complaint about grandparents' influence on the minor, the judge said the relationship between a child and her grandparents is vital for the child’s development.
"The man has also complained that woman’s parents are heavily influencing the upbringing of the minor. I agree with the trial court that the relationship between a child and her grandparents is vital for the child’s development. It must be noted that parental responsibility is on the father and mother of a child. On the other hand, the emotional and mental well-being of the minor includes spending time with her grandparents. This is in her best interest," said Justice Ogolla.
Joint parental responsibilities
He was ruling on an appeal filed by the man, codenamed in court as PNM, challenging the magistrate's decision to give him limited access to the minor.
The man moved to court in 2019 seeking joint legal and actual custody, care and control of the minor as well as joint parental responsibilities. He claimed that after separation the woman denied him access to the minor and that she had rejected his request to baptise the child as per his catholic faith.
He claimed that all communications between him and the former wife were through her parents and that the woman was neglectful to the minor.
The ex-couple solemnised their marriage union in March 2016 and had one child born in June 2017. The marriage collapsed and they separated in December 2017 when the woman moved out of the matrimonial home. Both are working pilots.
On the question on which party should have actual and physical custody of the minor, Justice Ogolla observed that since the child has always lived with the mother it would be not in her best interest to move her to a new environment at this time.
"I agree with the trial court that actual and physical custody should be with the mother and for both parties to have legal custody," said the judge.
The man escalated the dispute to the High Court after a magistrate ruled that he would access the minor on every alternative Saturday of the month from 10.00am to 5.00pm and sleepovers with prior arrangements with the mother.
Aggrieved by the decision, the man argued before Justice Ogolla that it was wrong for the trial magistrate to limit his access hours and times he has with the minor which is not in the best interest of the minor.
He added that the magistrate failed to expressly stipulate that the minor was to have sleepovers at his place leaving the same at the whims of the mother.
Justice Ogolla said the access time allocated to the man was not sufficient, observing that from the evidence before the trial court, the man had shown that despite the differences between the parents that caused their marriage to break down, he wanted to spend as much time as possible with the minor and be part of her upbringing.
"I direct that the man shall access the minor every alternative weekend of the month from 5:00 pm on Friday to 3:00 pm on Sunday. Since the minor is of school-going age, he will have the minor for the first half of each school holiday and mid-term break. The pickup and drop-off point shall be agreed upon by the parties," he stated.
The court said parental responsibility for both financial and physical care is on both parents, citing Sections 23 and 24 of the Children’s Act and Article 53(1)(e) of the Constitution. Both sections of the law provide that each parent has a duty to provide the child with the necessities of life.
"Parental responsibility includes the emotional and mental care of the minor. Part of this would include the father having as much time as he can raising and influencing the upbringing of the minor," said Justice Ogolla.
The judge concurred with the trial court that shared responsibility does not equate to an exact 50:50 basis.
On financial maintenance of the child, the court said the man will cater for the minor’s school fees and school-related expenses while the woman will cater for the minor’s food, housing expenses, utility bills, house-help expenses and clothing whenever the minor is in her custody.
The man will cater for the minor’s food, housing expenses, utility bills, house help expenses and clothing whenever the minor is in his custody. Both parents will equally cater for the minor’s medical expenses.
