I want custody of my children

Dear Fida Kenya,

My husband and I got married in a colourful church wedding ten years ago. We met at work and I resolved to resign as the company policy forbade spouses from working in the same office. Furthermore, my husband was in charge of the regional office and we agreed he keeps his job as his salary could support us.

Unfortunately, he turned into a stranger eight years later. He frequently had affairs with new employees and came home drank and late at night.

I have decided to move on with my life and take our two daughters aged seven and four with me. Is there a legal process to ensure I get the children without physical confrontation?

Roslyne, Kisumu

Dear Roslyne,

Yes, it is possible to move on with your two daughters as desired. What you are asking for is in law known as custody. Custody is when a married couple either separate or divorce and questions arise over who shall keep the children. It is a legal process and you must apply to the court for an order of custody for you
to stay with the children.

However, you must prove to the court that your husband is irresponsible before securing orders to take the children away. Normally, judges and magistrates consider the interest or welfare of the children to be most important and give custody to the parent they think has their best interest at heart.

Furthermore, precedents show that courts, in most cases where the children are as young as yours, give custody to the mother because of the nurturing role she plays towards their growth. Other considerations are if either parent has neglected the matrimonial home, is a drunkard, drug addict, abusive or violent.

You have not mentioned whether you got another job, but it is never an issue when one parent has more money as the court can order maintenance by the spouse that earns more.