Men can now have custody of children below 9 years, High Court rules

The best interest doctrine provides that either parent can have custody if they are best placed to give the child the best life. [iStockphoto]

The High Court has handed fathers a major win in custody cases, granting them an equal right to take care of minors despite their age.

For many years, the law has denied men the right to keep children of tender years as it was believed they would get better care from mothers.

However, Justice Joel Ngugi said men can also change diapers, bathe children, feed and shower them with love and care as much as mothers.

In his April 4, 2022 verdict, Justice Ngugi said men can be granted custody of children aged below nine years.

He said parental responsibility should not automatically go to women.

Justice Ngugi stated that a man has an equal right to parent his children irrespective of their age.

According to the judge, the age of the child should also be weighed against his or her best interest to determine who between the mother and the father should have custody.

“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.” 

For many years, the law has denied men the right to keep children of tender years as it was believed they would get better care from mothers. [iStockphoto]

The decision is based on a court battle between parents codenamed SMM and AAK. At the centre of the case were two doctrines – child's tender years and child's best interests.

The tender years’ doctrine dictates that custody of young children should be granted to the mother.

On the other hand, the best interest doctrine provides that either parent can have custody if they are best placed to give the child the best life.

In a rather rare case, both SMM and AAK did not discredit each other to tilt the scales of justice in their favour. Instead, they both praised each other as excellent parents.

The only contention was whether the two children should go with SMM to the US where she lives or remains with their father in Kenya.

SMM and AAK were married and living in the US. They parted ways on November 20, 2010 and had one child aged three.

Shortly after the divorce, they reconciled and moved in together in Alabama and had their second child in 2013.

AAK moved to Kenya to run his extended family’s business and came back with their first child. 

In 2017, SMM joined him and was exploring whether to set up business in Kenya and possibly relocate.

She was however not satisfied and went back to the US, leaving the two children with their father. 

By the time she was leaving the country, the two boys were eight and four years old.

SMM came back to Kenya last year to take the two children back with her. However, AAK objected, saying he had managed to raise the two without her help. He asked the court to grant him custody and have the two live in Kenya.

The man asserted that they have good education here and enjoy the warmth of their extended family present in Kenya. 

He expressed fear that he may not see them again since he is no longer a US citizen.

The case was first heard before the magistrate's court. The lower court granted the man temporary custody and ordered that they should continue studying in Kenya.

Aggrieved, SMM filed an appeal. In the High Court, Justice Ngugi ordered the two to try to settle the issue out of court but it did not work.

In her case, SMM said the two have a better chance if she went with them to the US. She termed their father an excellent parent.

According to court records, she offered to assist him to get a green card to ensure he would see the boys whenever he wanted.

She argued that sexual indiscretion made AAK an unsuitable parent to be granted primary custody.

On the other hand, AAK said in Kenya, the children would be surrounded by loving uncles and aunts who would continue to guide their moral and social development, unlike in the United States where he felt they would be isolated.

He told the court SMM has been sending money for their upkeep but asserted that his financial and social stability made him the better parent for the two.

AAK expressed fears that they would be subjected to racism in the US.

In the end, the judge balanced the scale of justice by ordering that they should both have joint custody.

SMM will access the children whenever she is in Kenya and on their holidays or Saturdays while the man will remain with them in the country.

“In the present case, given that there was no evidence that either parent was unfit or suitable to have custody, it was unnecessary to grant legal custody to one parent only,” he ordered.

The orders:

-Both parents will have joint custody

-They have an equal say on their education, religion and health

-Father to have physical custody

-Mother to have unlimited access to them whenever she is in Kenya

-She will have access to them during school holidays and Saturdays

-Whenever she is out of the country, she can access them through telephone, video calls or email

-Mother to hand their passports to father immediately

-Can agree on maintenance and if it fails, either party can approach the court