Fathers have won big in child custody case after a Children’s Court in Mombasa ruled that the primary caregiving role to children of tender age is not exclusively for mothers.
Tononoka Magistrate Lucy Sindani ruled that fathers too can be primary caregivers if no evidence is tabled in court to disqualify them from that role.
“It is noted that it is not only a mother who can give primary caregiving role to the children of tender age but even a father in as long as it has not been shown that he is unfit to take up this role,” she said.
The magistrate observed that in certain instances, the courts may be forced to depart from the general rule on custody of children of tender age and grant actual custody to the father in the best interest of the child.
The courts have in the past termed as misleading and stereotyping the reasoning that it is not possible for a man to be the primary caregiver because “he shall from time to time be required to attend to his breadwinning duties and will soon leave the duties to the house girl”.
Ms Sindani noted that in a context where both parents have expressed the fear that the other parent will make access to the child difficult, the question becomes which parent will be able to utilise the legal mechanisms that exist to enforce contact.
The magistrate made the ruling in a case in which a foreigner and his estranged former girlfriend have been engaged in legal dispute over the custody of their four-year-old son for the past four years.
While giving the man physical custody of the child, the court ruled that he was the most suitable person to enforce the rights of the minor.
Ms Sindani noted that the toxic nature of the child’ mother and her general character is an exception that the court has put into consideration in departing from the general rule on custody of children of tender age.
“The man is better off staying with the child because he is able to cultivate love, good relationships and peace in him as opposed to hate and vengefulness that he is being exposed to by the mother and her family,” she said.
The magistrate denied the woman the physical custody of the child, noting that should that happen, she will continue denying the child a right to see his father and enjoy fatherly love.
“Due to endless fights occasioned by the woman, I am of the view that the continued stay of the child with a toxic parent who cannot separate her personal issues with the children’s issues will jeopardise the best interest of the child,” said Ms Sindani.
The court ruled that the woman’s behaviour of getting custody of the child and immediately going into hiding with it is destabilising to the child and causing it emotional stress.
“In this case, the father has taken up this role so well from the time he had custody of the child and the child has shown tremendous improvements while in his custody,” said the magistrate.
The court, however, granted the woman a supervised access to the minor on alternate weekends and at a gender desk in a police station between 11am and 3pm.
The ruling paves the way for the foreigner to register the boy as a British citizen and secure an Irish European Union passport as he has previously indicated to the court. The woman had opposed this move, claiming the foreigner wants to escape with the minor.
The court has issued a final order prohibiting the parties from leaving the country with the minor without the consent of the other or order of the court until the child is 12 years old and able to understand better what is going on.
