A judge has ruled that men can be allowed sole custody of children, revoking a long-held view that only women are primary caregivers.
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.
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.
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.
“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.
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.
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.
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