Based on a landmark ruling by a Nakuru Court, men in Kenya can have custody of children below the age of nine years.
The judgment issued by Resident Judge, Justice Joel Ngugi, directed although the Tender Years Doctrine is persuasive in considering custody of children, it can no longer be considered an inflexible rule of law.
He added that the judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases.
“The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child,” he said.
Ngugi said there was no reason to restrict legal custody to one parent only in a situation where there was no evidence that either parent was unfit or unsuitable to take up the role.
While delivering judgement in a case where a couple was fighting for the custody of their two children aged nine years and 15years, the judge said the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases.
According to the facts of the matter in court, the couple allegedly married in Alabama State in the United States of America but officially divorced in 2010 due to irreconcilable differences.
By the time of divorce on November 20, 2010, the couple had one child born in 2007 whose custody was given to the mother by the Domestic Relations Circuit Court of Jefferson County, Alabama with the father getting defined visitation privileges.
However, romantic love flourished between the couple once again shortly after their divorce, they moved in together and a second child was born in 2013.
“All the while, father, mother and children lived in the US with the children although they did not remarry,” read part of the judgment.
It stated that in 2015, the couple agreed to come back to Kenya and set up a family business in the hotel industry with the man coming in first followed by the elder child later in the same year after which the woman followed with the second-born child in 2017.
“As conceived, the plan was for the Appellant and Respondent to continue to live together as a couple in Nakuru where they would bring up their two children,” observed Justice Ngugi.
Facts in the judgment stated that the appellant who is the mother of the children moved in with the Respondent at his home in Milimani, Nakuru and remained in the Country for a little less than two years before moving back to the US in 2019 when the plans for her to have a sustainable business failed.
The judge said the parties disagree on what transpired in the two years that they were together in Kenya as the man claimed that he set up a business for his partner but she allegedly abandoned it and the two children and went back abroad.
The court noted that the woman on the other side insisted that the Respondents’ parents had promised them jobs, a house, a car and a business if they relocated back to Kenya but after she came back, the promise was never fulfilled.
“She returned to Kenya around July 2021. She confessed that she intended to renew the American passports for the two children so that she could return with them to the US,” said Ngugi.
He noted that the parties disagreed on whether the woman was acting per their earlier agreement or whether she was now acting unilaterally because according to him, the only existing agreement was the one they made in 2015 to relocate and raise their children in Kenya.
Fearing that his spouse would take the children back to the US, the man filed the matter in the Children’s Court because he also feared that, he would not have free or easy access to the children if they relocated back to the US since he was no longer a Green cardholder.
He asked the lower court to give him the Legal and actual/physical custody of the minors.
The man told the magistrate’s court that he was shouldering all responsibilities of the minors and was willing to shoulder the same should the defendant be unwilling to share.
The lower court granted the man custody but his spouse appealed against the judgment saying that the trial court erred in its ruling.
From the evidence adduced in court, it was clear that the man lived with the children since they were four years and eight years respectively, the court established.
Ngugi said the mother’s suitability must be weighed together with other factors such as the fact that the children have been in the actual custody of their father for at least the last four years.
He also considered her intention to relocate to the US and the difficulty that would be occasioned to the Respondent, with not only accessing the minors but also enforcing any orders of the Kenyan Court once the children are outside the jurisdiction.
“The kin and kith of the children live here in Kenya. If they relocate to the United States, they will not have the network of family support and bonding that is happening in Kenya,” said the judge.
Justice Ngugi ordered that the legal custody of the children will be shared jointly between the couple with the father having actual/physical custody of the minors.
He also ordered that the minors’ passports which are in the custody of the mother be handed over to them immediately.
High Court in Nakuru issued a judgement that would allow men to have children custody.
