TOPIC 8.

CHILD CUSTODY UNDER THE CURRENT REGIME

Introduction

Under common law a parent was under an obligation to take care of his child during marriage

and this obligation was only on the part of the father. In the event of marriage break-down, the

father always had a right of custody unless he forfeited it through immoral or cruel conduct. This

was stated in Re Agar Ellis {1883] 24 Ch.D 317

The position under common law was changed by statues which have watered down the exclusive

rights of fathers over children. One finds common law started from a position of paternal

preference when it came to rights and responsibilities over children. This was weakened by an

increased focus on children’s welfare as the primary consideration and also with the effects of

the industrial revolution fathers, fathers increasingly sought work outside home while mothers

remained at home as primary caretakers. The resultant division of family responsibilities

influenced custody decision and the paternal preference was eventually replaced by maternal

preference. The maternal preference is based on the tender years doctrine. The assumption is that

mothers were better suited to nurture and raise children of tender years.

Current Legal Position

Custody decisions are now based on consideration of the child needs as opposed to the interest or

the gender of parents. In Kenya, child custody is now regulated by the Children’s Act

Custody under the CA is defined to mean parental rights and duties as relates to the

possession of the child. Care and control is the actual possession of a child. We have two types

of custody: legal and actual custody.

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A custody order is a court order given to the applicant seeking custody of a child. The custody

is given to the person and referred to as the custodian of the child.

Not everyone can be given custody. A parent, guardian or an applicant who must have lived with

the child for three months prior to the application of custody over the child.

Section 83 of the guiding principles:

a. The conduct .of the child

b. The wishes of the child

c. The wishes of the relatives of the child

d. The wishes of the foster parent

e. The wishes of the child

f. Whether the child has suffered any harm or is likely to suffer any harm if the custody

order is not granted

g. Customs of the community in which the child belongs to

h. Religious persuasion of the child

i. Whether care orders, supervision orders, personal protection orders or exclusion orders

have been made, and are enforced.

j. Circumstances of any sibling of the child concerned and other child of the child

k. Best interest of the child.

Where two parents are concerned they should decide between themselves who is best suited to

have custody of the children.

The court is under discretion to enforce these decisions as long it is in the best interest of the

child. Where there are two parents or guardians and only one is granted actual custody, the other

parent only acquires the rights and duties in relation to the child of what is referred to as the legal

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custody. Upon the death of a parent, the case involving custody, the other parent does not

automatically become the custodian of the child except with the leave of the court. The deceased

parent may have appointed a guardian in a way and if not, the court appoints one.

Jurisprudence on custody

J.K.F v K.W.L CA 40 of 2014 eKLR 2014

Trial Court

This was a case in which the trial court granted actual custody of the minors to the mother and

the father was granted unlimited access to the minors during the days when they were not in

school. The court further determined that the two parties were to agree on maintenance. The

father was aggrieved by the decision and appealed.

Appeal

The appellant pledged that the respondent mother plucked the teeth of one of the child when she

took them on august and as a result the child lost esteem and confidence. The father alleged that

when the court gave the children to the respondent during the Easter school holidays, the

respondent mother neglected them and as a result they returned when they were sickly with dark

paled skin, dirty and with bad mannerisms. Appellant further argued that the trial court was

biased as it did not consider the wishes of the children and their welfare. He also argued that the

mother had found a new husband and that his children would be exposed to the hostility of new

in-laws.

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The respondent on the other hand dismissed appellant’s allegation that he had married another

man. She explained to the court that owing to the nature of the appellant’s job who was a tour

operator the children were most of the times left in the care of house girls who the appellant

hired and fired frequently. He argued that personality of the children is likely to be affected by

the house girls who had no personal attachment to the children. She also demonstrated to the

court that he had other children as he was polygamous and was not taking proper care of those

children.

The Court of Appeal .granted custody to the respondent mother and noted that the appellant

father had not demonstrated any exceptional circumstances that would have denied the

respondent custody of the minor children.

Development in Jurisprudence:

Men can be allowed sole custody of children, revoking a long-held view that only women

are primary caregivers.

JKN CASE

High Court Judge Joel Ngugi declared that it is a fallacy to imagine that men cannot be primary

caregivers but can only be breadwinners.

The ruling arose from a child custody battle between an estranged couple which parted ways

after the man caught his wife in their matrimonial bed with their house boy.

The man, named in court records as JKN, lost custody of his two children in 2014. The

magistrate’s court then ruled that it was impossible for him to have child custody as he was

required to be out fending for the family.

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The magistrate ruled that it was safer for the children’s mother to take custody rather than them

ending up under the care of house helps.

“Although, the plaintiff (JKN) was categorical that he will personally supervise the house

girls, I find that this may work for a short while as a man, he shall from time to time be

required to attend to his bread-winning duties and will soon leave the duties to the house

girls,” ruled the magistrate. “The other question I ask is, and which is the reality, if the

said house girls walk out on the plaintiff in the middle of his bread-winning duties, what

will happen? If I am to call a spade a spade, it is difficult for a man to take the role of

care giving,” Resident Magistrate M. Otindo observed.

Case appeal

But JKN appealed at the High Court where Justice Ngugi said it was wrong to assume that men

are naturally meant to be the breadwinners and women to be caregivers.

He said that the finding by the magistrate could also send a message that “good” mothers stay

home with their children while “good” fathers go out to “win bread” for the family.

“With tremendous respect, I find this reasoning to be dangerously problematic. It does no

favours to women to espouse these kinds of stereotypes. Moreover, relying on the

stereotypes to reach a verdict on an individual and specific case is unfair to the parties

concerned,” said Justice Ngugi.

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 “At this point in the judgment, the learned trial magistrate does not apply the scalpel of

the prima facie rule and its exceptions to the facts and context at hand. Instead, she uses

the hammer of stereotypes to reach a conclusion,” He said.

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.

Brief facts of the case;

At the heart of the case were two children born from a blissful marriage that suddenly hit a dead

end. The man told the court that he found his wife sleeping with their house boy.

He told the court that he caught the two red-handed at night in the couple’s matrimonial bed and

that he gave his wife two choices: to either remain with him and the children or to go with the

“boy-friend”.

He claimed that his wife chose to go away with the “boy-friend,” abandoning the children who

were only 5 and 4 years old at the time. He then employed a house help to take care of their two

children now aged 12 and 11 years.

According to the man, his former wife’s infidelity was a solid reason for her to be denied custody

of the children.

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The woman, on the other hand, argued that JKN was not a responsible husband and was cruel to

her. She called her parents who told the court that it was within her right to marry again because

he had not paid dowry.

Two separate reports by children officers were filed in court. One stated that the children wanted

to stay with their father while the other stated that custody of the children ought to be given to

the mother.

Justice Ngugi ruled that spousal infidelity could not form part of a reason for the woman to be

denied custody unless it rises to the level where it harms the children.

He ordered the man and woman agree on how they would share custody and responsibility over

the children, failure to which the court would make adverse orders on whoever refused to

compromise.

A.O.G vs S.A.J & another

The court of Appeal in this case upheld the best interest of the Child as the guiding principle or

factor applied by the courts in determining matters relating to children.

Briefly, the facts of this case are that the parents of the child in this case held different

citizenships. The father is a citizen of UK and mother is a Kenyan. Apparently, both wanted

custody of the child who was two and a half years old.

It was held that the child being of tender age, and at this stage of his development, it was in the

best interest of the child for the custody to be granted to the mother as she had already enrolled

the child in a kindergarten in Kenya.

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The court applied Section 4(3) of Children’s Act. It provides that all Judicial and administrative

institutions exercising power conferred by the Act, shall treat the best interest of the child as the

first and paramount in all its actions. Particularly, this should be the consideration in

safeguarding, conserving and promoting the rights and welfare of a child.

Boyani Vs Mwaghoti

The applicant filed a petition for divorce together with a chamber summons seeking for the

custody of two children of the marriage to the respondent. AM aged 7years and DW aged 2½

years. Section 83(1) provides for the matters that should be considered when granting custody.

Apparently, in this petition, both parents were living comfortably and all factors stated in the

section aforementioned were met. This being the case, the then Otieno Onyango J. considered

the age of the children in order to determine custody. It was held that the two children of the

marriage were still within the ages that dictated that they live with their mother unless she is

found to be hopelessly unable to take care of them.

C O A v P A O [2013] eKLR

In this appeal case a court order by a senior principal magistrate had been made directing that

children following a divorce be with their mother as they were of tender years. The appellant had

moved with the children to Harare, Zimbabwe, where they were attending school. The appellant

was aggrieved by this order and he therefore appealed. In his appeal he sought stay of execution

of orders made on 13th March 2012 by Hon.R.A. Oganyo (Mrs), Senior Principal Magistrate.

The application of the children’s Act to respond to the best interest of the child principle in

this case.

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In his ruling, the magistrate stated as follows,” I agree with the lower court that as a general

principle children of tender years ought to be with their mother. I do not fault the final order that

the subject children be returned to Kenya. My concern is that that order has been appealed

against. The appeal pends before this court, and this court is therefore seized of it. This would

require that I deal with this application bearing in mind that there is a pending appeal. In

deciding this application I must be guided by Section 4(3) of the Children Act, Act No. 8 of

2001, which provides:-

‘All judicial and administrative institutions, and all persons acting in the name of these

institutions, what they are exercising any powers conferred by this Act shall treat the interests

of the child as the first and paramount consideration to the extent that this is consistent with

adopting a course of action calculated to

(a) safeguard and promote the rights and welfare of the child;

(b) conserve and promote the welfare of the child;

c. secure of the child such guidance and conversion as is necessary for the welfare of the child

and in public interest…’

The children subjects of these proceedings are with their father in Harare, Zimbabwe. They are

said to have been enrolled in school there. They were removed from school in Kenya in October

2011 and enrolled in another in Zimbabwe. The order being challenged requires that they be

removed from school again in Zimbabwe and enrolled in another school in Kenya. The order is

appealed against, should the appeal succeed after children have already been moved back to

Kenya, the appellant will be entitled to move them back to Zimbabwe. This scenario would no

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doubt go against the spirit of Section 4(3) of the Children Act. It would not be in the best

interests of the children to allow their being moved one school to another.”

This case illustrates the willingness of magistrates and judges to be as flexible as possible when

it comes to application of legal rules. The magistrate acknowledged that it is a general principle

that children of tender years ought to be with their mother. But he was careful not to apply this

principle so as to ensure the realization of the best interest of a child in the circumstances of this

case.

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