The high court has declared that men can be allowed sole custody of children, revoking a long-held view that only women are primary caregivers.
Issuing the ruling, Judge Joel Ngugi observed that it was a fallacy to imagine that men cannot be primary caregivers but can only be breadwinners.
This ruling sprung from a child custody case between an estranged couple which parted ways after the man allegedly caught his wife in their matrimonial bed with their house boy.
The plaintiff, named JKN, lost custody of his two children in 2014. The magistrate’s court then ruled that it was impossible for him to have child custody as he was required to be out fending for the family.
The magistrate ruled that it was safer for the children’s mother to take custody rather than them ending up under the care of house helps.
JKN appealled at the high court where Justice Ngugi stated it was wrong to assume that men are naturally meant to be the breadwinners and women to be caregivers.
He noted that the findings by the magistrate could also send a message that “good” mothers stay home with their children while “good” fathers go out to “win bread” for the family.
“With tremendous respect, I find this reasoning to be dangerously problematic. It does no favors to women to espouse these kinds of stereotypes. Moreover, relying on the stereotypes to reach a verdict on an individual and specific case is unfair to the parties concerned,” part of Justice Ngugi's ruling read.
The judge quoted the Children’s Act envisages that custody should either be shared or joint. He ruled that both parents have a right to participate and make input in the major decisions concerning the children including, but not limited to, educational, religious and medical.
The man told the court that he caught his wife and the house-boy red-handed at night in the couple’s matrimonial bed and that he gave his wife two choices; to either remain with him and the children or live with the “boy-friend”.
The wife chose to depart with the “boy-friend” abandoning the children who were only 5 and 4 years old at the time. He then employed a house help to take care of their two children now aged 12 and 11 years.
The complainant intoned that his former wife’s infidelity was enough reason for her to be denied custody of the children. The defendant, on the other hand, argued that JKN was an irresponsible husband who was cruel to her.
She called her parents to the stand, who told the court that it was within her right to marry again because he had not paid dowry.
Justice Ngugi ruled that spousal infidelity could not form part of a reason for the woman to be denied custody unless it rises to the level where it harms the children.
He ordered the man and woman to agree on how they would share custody and responsibility for the children, failure to which the court would make adverse orders on whoever refused to compromise.
This case will be a reference point for men who have been denied child custody for the long-held belief that women offer better care to children compared to their male counterparts.
