Big win for men as judge says they can be granted custody of infants

Court says tender years doctrine be explicitly subjected to the best interests of child. [iStockphoto]

Men can take care of infants just like women and should get custody if the best interest of the child will be met by a father, the High Court has ruled.

The judgment now unsettles the tender years doctrine. Justice Lawrence Mugambi overturned a magistrate's court order requiring a man to hand his son over to his ex-wife after finding that he had taken care of the boy from the age of two years.

The doctrine dictates that infants who are below four years cannot take care of themselves and should automatically remain with their mothers. It was presumed that mothers have superior skills than fathers to care of a child.

Justice Lawrence Mugambi said that the starting point in a custody dispute should be that a mother and father have equal rights on child custody, then weigh in on where the child's interest would be best taken care of.

In the case, the minor at the heart of the court battle between a man codenamed DNW and a woman codenamed FWK lived with the father from when he was two years. His mother left him after the marriage hit the rocks.

Tender years doctrine

While faulting the magistrate's court for ordering the now eight-year-old boy should go to his mother, Justice Mugambi found that the lower court erred for failing to factor in that DNW had taken care of the minor by himself.

"Differently put, the tender years doctrine must now be explicitly subjected to the best interests of the child principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases. 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 toward the custody of the child," he ruled.

He argued that changing a minor from his home and school that he has been acquainted with for the last 8 years and introducing him to a new environment and school will not only disorient and confuse him but might also lead to emotional and psychological trauma.

He ordered that the children officer should prepare a report within two months on how the minor is as his mother was alleging that he was suffering at the hands of his father.

The woman in her case admitted that she left the child when he was two years with her ex-husband but insisted that he is still of tender age and therefore she ought to get custody. In the case, FWK accused DNK of abandoning his family.

However, the man told the court that he had discussed with his former wife that due to the hard-economic situation they were facing, they needed to relocate to their rural home in Nyeri to save on rent, food, and other related expenses but she declined and insisted that she was not familiar with life in the village.

He said that in 2014 he left for the village to prepare a place for the family only to find that the woman had carted away everything.

Several weeks later, she sent a motorcycle rider to drop the then two-year-old boy 10 meters from his home. He asked the court to compel her to provide Sh8,000 for child upkeep, Sh5,000 for clothing every three months, and Sh500 for medical expenses.

Justice Mugambi noted that although the man lost at the lower court, it may have been on his own undoing as he went missing after his lawyer failed to show up in court.

"It needs to be appreciated that the major bottlenecks afflicting the courts nowadays is a delay in conclusion of cases and the biggest culprit is endless applications for adjournments. Adjournment of cases will definitely continue to be there but in any proper judicial system, it should only be reserved for the most deserving cases or circumstances," he observed.

He directed that the custody should be shared but the man should remain with the minor. The minor will then go to his mother during school holidays and weekends.