When a couple who shares a child or children separate, sometimes there is a tug-of-war on the children with each party considering themselves a better parent. However if the matter goes to children court, in most instances it is the mother who will be awarded custody, care and control of the children. This is why.
The Constitution provides that the child’s best interest should be the paramount consideration in all matters involving a child. An act that will safeguard the “best interest of the child” is that action that will safeguard, conserve and promote the rights of a child. A child has a right to live with and be cared for by his parents but the law provides for the principles to be applied when it has to award custody to one parent, which include:
- the conduct and wishes of the parent or guardian of the child;
- whether the child has suffered any harm or is likely to suffer any harm if the order is not made; and
- the best interest of the child.
It is imperative to note that the financial capacity of either parent is not a direct principle applied to determine custody.
All other things being constant, when the child is of tender age (under the age of ten), courts have considered that it is in the best interests of the child that custody be given to the mother. This is what is referred to as maternal preference.
However the maternal preference rule has two exceptions:
- Where there are special and peculiar circumstances that would disqualify the mother from being awarded custody. These circumstances have been listed as disgraceful conduct by the mother: which is to say immoral behavior, drunken habit or bad company.
- Where the mother is unsettled by taking on a new husband or living in quarters that are in deplorable state.
Evidence of these circumstances disqualifying the mother would need to be more than mere allegations. They would have to be cogent and corroborated evidence such as a negative Childrens Officer Report.
However while these exceptions have been listed as possible reasons why the maternal preference rule would be excluded when determining custody, there is currently no Kenyan case whereby a father has successfully argued for exclusion of the maternal preference rule with children of tender age.
What about if there are some children over 10 years of age, and some under 10 years? In such a case the courts would rely on other principles to determine custody. These principles are:
- the ascertainable wishes of child of over 10 years;
- the custody of the child’s siblings; and
- whether the child is likely to suffer any harm if separated from their siblings.
Based on precedence the mother would also be given custody of the child of over 10 years in order not to separate them from their siblings.
Custody law in Kenya is largely static and the preponderance of determined cases have held that maternal preference in determination of custody is in the best interests of the child.
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