Court gives father full custody of children after mother disowns them

A High Court in Kiambu has awarded a man full custody of two minors after his ex-wife disowned them.

Judge Mary Kasango allowed the father to take care of the children aged 12 and 11 following an appeal.

The mother was allowed limited visitation rights. The court said she shall have access to the children every first weekend of every month, from Friday evening to Sunday afternoon.

Further, the father was granted permission to travel out of Kenya with the children, and such travel shall be taken with two weeks’ written notice to the mother.

In the judgement delivered on Monday, Justice Kasango noted the undisputed evidence is that the mother to the minors surrendered them to their father.

“In this case, the uncontroverted evidence is that the mother surrendered custody of the children to the father and the father stated, and it was not denied, that the mother in surrendering them to their father told the children she was no longer their mother,” said Kasango.

The couple divorced and entered into a parental responsibility agreement dated October 5, 2016 (first agreement). They then entered into a second agreement on June 19, 2019.

The two first agreed to have joint custody of the children, where the children were to reside with each parent weekly on alternating basis.

The parents also agreed to share holidays and vacation time with the children. The father was to cater for the children’s education needs.

On June 19, 2019, the parents agreed the father would henceforth have full custody of the children.

A Children’s Court in Thika on January 26, 2021, ordered amongst other directives, that the mother and father have joint custody of the two minors, with each parent having the children for one week.

However, the father was aggrieved by the lower court judgment and appealed.

In the appeal, he faulted the court for setting aside the second agreement, failing to take cognizance of the mental and psychological well-being of the mother, and failing to grant the father the right to travel to the Netherlands with the said children, among others.

“My consideration of the evidence adduced before the trial court shows the mother unilaterally surrendered to the father her right to joint custody of the children. It is that surrender that led to the second agreement being drafted,” stated Kasango.

The woman submitted that the man tainted her character by alleging she had mental health problems, which the father said interfered with her remaining with the children.

She said she surrendered custody of the children following a motor vehicle accident which she was involved in on April 23, 2019.

“The accident occurred at 4.30 hours of the morning of 23rd April 2019. Where was the mother driving to or from that hour when she had young children to care for? The father in his pleadings and affidavit evidence stated that the mother was drunk when the accident occurred. The mother did not respond to that allegation,” noted the court.

The court questioned why the woman surrendered custody of young children to their father and willingly signed an agreement granting the father sole custody.

The court further noted that although the jurisprudence of custody cases is that custody of young children should be granted to the mother, it needs to be borne in mind that custody will not be granted where such a mother will not contribute to the child’s welfare.