Child custody cases favouring men
Courts have often considered mothers as best able to take care of children. In the recent past, several court rulings have favoured fathers as custodians of the children. PHOTO | POOL
What you need to know:
- Courts have often considered mothers as best able to take care of children, arguing they know their interests and needs.
- In June last year, another judge ruled that men can be allowed sole custody of children, revoking a long-held view that only women are primary caregivers.
- Finding by magistrate could send a message that “good” mothers stay home with the children while “good” fathers go out to “win bread” for the family.
The tide seems to be changing in favour of men as they increasingly win court battles for custody of their children, a thing that has in the past favoured women.
Courts have often considered mothers as best able to take care of children, arguing they know their interests and needs.
In the recent past, however, several court rulings have favoured fathers.
A Nairobi court recently dismissed an application by a woman who sought to suspend the judgment of a lower court that gave both parents legal custody of their son.
The woman was aggrieved that the court gave more access the father of their son despite the same court granting her the actual custody, care and control.
The couple that got married in 2008 divorced in March 2009.
Justice Aggrey Muchelule in his ruling declined to suspend the ruling of the lower court until the appeal is head in full.
Children's court
Last May, the children court’s ruled the father was to have access to the child on alternative weekends and half of the school holidays.
According to the court orders, both the mother and the father were required to personally pick and drop the child, a verdict the woman has contested.
“The two may not like each other but they have to meet to review the education of the child, its medical needs, upkeep among others,” reads part of the ruling.
In June last year, another judge ruled that men can be allowed sole custody of children, revoking a long-held view that only women are primary caregivers.
Nakuru High Court Judge Joel Ngugi declared that it is a fallacy to imagine that men cannot be primary caregivers but only breadwinners.
The ruling arose from a child custody battle between an estranged couple. The man, named in court records as JKN, lost custody of his two children in 2014.
The magistrate court then ruled that it was impossible for him to have child custody as he was required to be out looking for money to fend for his family.
The man, however, appealed at the High Court. Justice Ngugi said it was wrong to assume that men are naturally meant to be the breadwinners and women the caregivers.
He said the finding by the magistrate could send a message that “good” mothers stay home with the children while “good” fathers go out to “win bread” for the family.
“With tremendous respect, I find this reasoning to be dangerously problematic. ..Relying on the stereotypes to reach a verdict on an individual and specific case is unfair to the parties concerned,” Justice Ngugi said in his ruling.
According to the judge, child custody, whether actual or legal, should not be given to one parent or person alone. He said the Children’s Act envisages that custody should either be shared or joint.
He ruled that both parents have a right to participate and make input in the major decisions concerning the children including but not limited to the educational, religious, and medical.
Maendeleo ya Wanaume Chairman Nderitu Njoka in a telephone interview welcomed the recent rulings saying the Constitution envisages a scenario where both parents should have equal rights on their children.
Maendeleo ya Wanaume
“This is what we have been fighting for; that both parents be granted equal rights and responsibility for their children.The law must be followed to the letter and no one parent should be favoured or oppressed against the other,” said Mr Njoka.
Njoka added that despite the court ruling granting men access and sometimes custody to their children custody, things on the ground are different.
“Our organization’s research shows that only one out of ten men have full access to their child/children despite the court ruling in their favour. Women still have the upper hand in determining if the man will see their child or not which should not be the case,” he said.
Mr Njoka said many men shy away from complaining in the open since they do not want to create unnecessary drama for the best interest of the children.
The law provides that there is no superior parent, both mother and father are equal hence, the child needs to bond with both of them equally.
With the enactment of the new Constitution, Article 53, stipulates that a child will be maintained by the father whether married or not.
Section 2 and Section 83 of the Children Act defines custody as actual possession, care and control. It refers to the one who will stay with the child, especially when schooling.
Access refers to when the child is not in school and the person who does not have custody will have a chance on alternate weekends, vacation or festive seasons. This is the available time when the child is not in school.
According to Section 4 (3) of this Children’s Act, the best interests of the child are also considered.
