Court urges divorcing couple to 'share the child equally' during Christmas festivities

The court insisted on the "personal handing over" of the child between the couple. [iStockphoto]

The Kakamega High Court has issued a ruling aimed at fostering communication between parents whose marriage is nearing collapse.

The ruling mandates the exchange of custody of their child during the festive season to facilitate dialogue.

In this decision, the mother is granted custody for Christmas, and she will personally hand over the child to the father for the New Year celebrations. Justice Patrick Okwaro Otieno, in delivering the ruling, appealed to the parents to focus on mediation talks related to their divorce case.

This December ruling nullifies a previous one from November 9, 2023, which the couple had endorsed. The earlier ruling stipulated that one parent would have custody of the child for the entire festive season, denying the other parent any access rights.

The annulled ruling dictated that the mother would have custody of the girl for the entire month of November 2023 and the father for the entire month of December 2023. Before its full implementation, one of the partners, NNN, moved to court to request a revision. Notably, the other partner, DM, did not contest this move, which is often seen in many divorce cases.

The new ruling requires the mother to immediately hand over the child to the father. In turn, the father will "personally" return the child to the mother on December 23, allowing the child to spend the Christmas period with her.

This is on the condition that the child is returned to the father by December 27, 2023, to enable her to be with the father until January 2, 2024, at which point the mother will take custody of the child.

The court insisted on the "personal handing over" of the child between the couple to ease the tension between them and possibly rekindle their former blissful ways, at least for the sake of the child.

Justice Otieno, at the same time, called on the couple to give a chance to the ongoing court-annexed mediation to heal their marriage so that they stay together and avoid circumstances that may compromise the well-being of their daughter.

"For that reason, parties are encouraged to talk more and put the best interest of the child above their own. ... It is also the view of the court that for the best interest of the child to be met, the two parents must climb down and talk over the child and her welfare," he said.

He advised that a court-annexed mediation that was ongoing to bring them together was as good as the attention they would pay to it.

"The court pays due regard that mediation, when properly conducted in good faith, has the potential to resolve the dispute and is thus cautious not to preempt the process. Let all issues capable of addressing the best interest of the child be addressed."

The pair was given 45 days from November 9, 2023, to try to heal their marriage. Failure to do so would result in a divorce case being entered, and the court would undertake the typically challenging and painful task of deciding custody of the minor.