With a heavy heart, Judge gives child custody to 'immoral' mother

A court has awarded the custody of a child to his mother despite questions about her character.

The woman identified in court papers as XW and her partner, a British national identified as DW, have been fighting for custody of the five-year-old boy.

In the proceedings at the High Court in Mombasa, XW was said to be "immoral and having a bad temper." On the other hand, DW, a detective, is "an ever-absent father because of his frequent travels to Iraq and Afghanistan."

But on Friday last week, Justice John Onyiego handed the custody of the child to XW, despite her shortcomings, which the court was concerned are not good for the baby's wellbeing. Justice Onyiego overturned an earlier decision by the children's court that had awarded the custody to the Briton who is in Kenya on a tourist visa.

"I am for the time being using discretion to determine who would be a better option in law between the two for the best interest of the child. Given the tender age, the mother (appellant) would be a better option after taking into account the shortcomings of each party," said the judge.

He agreed with the children's court that XW is temperamental and has not been responsible for the child. The woman's frequent movements out of the country to deny the minor's father access to him had also seen the child's education interrupted.

"I have, with a heavy heart, given actual custody to the mother on condition that she doesn't frustrate the minor's father's rights to access the baby as directed," said Justice Onyiego.

"The mother is further warned against disobeying these orders as she had done previously. Should she disobey the orders, the court will not hesitate to revoke the custody orders and make appropriate orders."

The judge said from the children's report, XW has an immoral character. The court heard that the woman has been taking different men to the house, which doesn't build a positive moral character of the minor.

"This behaviour is a clear indication that the child is vulnerable while in the hands of the mother. In my view, these are the exceptional circumstances to warrant denial of actual custody of the baby to the mother," said Justice Onyiego.

The court noted that while the father was better suited to stay with the boy, his job as a detective with the Scotland Yard involved frequent travel out of the country, occasioning his absence for long periods.

"On the other hand, the father has behaved with distinction and appears as a responsible person, caring and loving. He has bought the child a house worth Sh10 million and registered it in the name of the mother, and has been providing school fees. He is actually the best suited to have actual custody. However, there is one limitation with his residence status," said the judge.

He said the children's court, in awarding actual custody to the father, did not consider what would happen to the child when he is out of the country. Under such circumstances, the judge said, a relative would have been better suited to take custody of the child.

"He is on a tourist visa, often visiting after every three months. The father works in Iraq and Afghanistan. He frequently travels in and out of the country. He stated that he normally visits Kenya about three or four times a year," said the judge.

"With his tight schedule and nature of employment and residence status, the child will be left in the hands of third parties who are not answerable to the child."

The judge referred to a constitutional provision that a minor under 10 years should be with their mother unless there are compelling reasons to stop the same.