Child Custody

What happens after a marriage break-up
Joan was constantly being harassed, abused and sometimes locked out of their matrimonial house by her husband after the two had stayed as a couple for about 10 years and had two children from the marriage.

As a result, Joan, 40, approached a lawyer for assistance and advice on the issue. According to Joan, her husband had been constantly threatening her that he will throw her out of the matrimonial home. The lawyer advised that she files an injunction against her husband, restraining him from molesting her and from throwing her out of their matrimonial home.

But when she discovered that even this could not help, she asked the lawyer to seek a divorce, which the court readily granted her. But even as the court did this, there was still another problem – who between them would take care of their son and daughter, who were four and three years old respectively.

Susan, a housewife, was a victim of domestic violence and was thrown out of her matrimonial home. She went to court seeking divorce from her husband and custody of her child aged 12 years. She was of the view that probably her husband could agree for divorce by mutual consent. The lawyer advised her to try for the same and if it was not possible, she files for dissolution of the marriage, which she did.

The marriage was dissolved and gave her the custody of the child but directed her husband to remit the upkeep of their child until he becomes an adult. Although her husband was at first willing to do it, he refused and filed another case to have his son under his custody. And a protracted battle for the child began in earnest!

In another instance, Ruth was married in 2000. She had a child from the wedlock. But the husband threw her and her daughter out of their matrimonial home. She went to court seeking divorce and maintenance for herself and her daughter. She filed divorce petition and maintenance application for her and her daughter

In the end, the court allowed her to get a divorce but declined to put the child under her custody, forcing her to file an appeal in the High Court.

Whether a divorce or separation of a couple is a legal issue or not, couples must decide who will be awarded care of the minor children, which in most cases, is settled between the two parents.

Experts differ on who should take care of the children in case of divorce or separation. According some school of thought, it does not matter whether a couple has divorced or not, what matters is whether they were legally married. Maricus Okoth, a sociologist, argues that children belong to communities and not individuals as some people seem to claim. He says under the Luo customary law, marriage was a lasting institution between a man and woman, a family and another and a clan and another.

‘If there was a problem in a marriage such as divorce, the families were there to help. But divorce could only occur if the families felt that there was indeed no course for remedy,’ he says. Okoth says although divorce was allowed, it was done strictly under issues that included cruelty by the husband, witchcraft by the woman and circumstance where the two were not being able to get along with other co-wives or women in the family.

‘But in a marriage that had children, the act was not as a ‘divorce’ but a permanent separation. Women therefore were not allowed to take the children into their custody,’ he says.

Okoth explains: ‘When the woman died, her body was returned to her husband, even if she was married to another man. Such a man was said to be married to another man’s wife all along. Real divorce was the worst time for both families.’

But lawyer John Chigiti, who specialises in Family Law, says it does not matter whether the customary law is against giving a woman the custody of her child. ‘The custody of a child is decided under Children’s Act 2001,’ he says.

‘Prior to the enactment of the Children’s Act, the parental responsibilities were referred to as custody and access. Now those terms have been amended to include new terms of ‘parenting responsibilities and rights’, which include the rights to care for the children, and the responsibility and ,the right to maintain contact with the ‘children,’ says Chiqiti.

He argues that whenever a marriage gets dissolved, the next question that the parties and or the court have to determine is custody, access and maintenance of the children of the marriage.

The lawyer explains that child custody can take two forms physical and legal. ‘Physical custody means that a parent has the right to have the child live with him or her. Some courts award joint physical custody to both parents, which simply means that the child spends significant amounts of time with both parents. joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine,’ he says,

‘Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child lives with will have sole physical custody, with visitation rights to the other parent,’ explains Chigiti.

‘On the other hand, legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. Here, a parent with legal custody can make decisions about schooling, religion and medical care, etc. for the child. The court or the parties can agree to have joint legal custody, which means that the decision-making is shared by both parents after consulting,’ he says.

According to the lawyer, one parent can have either sole legal custody or sole physical custody of a child. ‘Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit for various reasons; because of drug dependency, for example.

Beth Mutugi, a Senior Deputy Secretary in the Ministry of Gender, Children and Social Development, says courts do not usually give sole custody rights to one parent since the divorced mother or father has a role to play in the children’s life, development and growth.

She concurs with Chigiti that where courts do award sole physical custody, the parties often still share joint legal custody and the non-custodial parent enjoys a generous visitation schedule.

‘In that situation, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights,’ says Mutugi. ‘Although courts allow divorce in families, this does not mean that the children are also divorced. It’s paramount that whoever is given the custody of the child must be in a position to provide moral, financial and other support to the children,’ she adds.

‘Sometimes parents who don’t live together have joint custody (also called shared custody) where they share the decision-making responsibilities for and/or physical control and custody of their children,’ explains Mutugi.

‘Joint custody can exist if the parents are divorced, separated, no longer cohabiting, or even if they never lived together. It may be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent), or both joint legal and physical custody.’

Odero Chrispine Omollo, a lawyer, says that according the Children’s Act 2001, a child shall have a right to live with and to be cared for by his parents. However, in case there are issues such as divorce, then whoever is given the custody by the court must be able to provide what the child may need for his or her upkeep.

‘Those who still believe that the custody of children lies with the community must be warned that such notions have long been abandoned. The Children Act, 2001 gives the court or the Director of Children’s Services the power to determine, in accordance with the law, what it is in the best interest for the child or children,’ he says.

Section 3 of the Act states that where a child is separated from his family without the leave of the court, the Government shall provide assistance for reunification of the child with his family

Omollo says the Act is very clear over the custody of children after a break- up of marriage. He says both parents have a right to the custody of a child as long as the best interest of the child is taken into consideration.

Whatever the case, factors which are mostly considered by the court in giving custody of a child to the claimants include the care (to which parent or joint care). How much contact time the parent who is not awarded care should have with the child and the level of maintenance from both parents. The parties may agree amongst themselves on how the care of the children will be dealt with but the court has the sole discretion to give directions on the matter.

‘It is important to note that the courts will not be looking for the so-called “perfect parents”. Our courts will opt for a solution that is the least detrimental available alternative for safeguarding a child’s growth and development,’ says lawyer Chigiti.

END: BL 43/42-43