Men in Kenya can have custody of children under the age of nine, according to a landmark ruling by a Nakuru Court.
Although the Tender Years Doctrine is persuasive in determining child custody, it can no longer be considered an inflexible rule of law, according to Justice Joel Ngugi’s decision.
He went on to say that the judicial rule that a child of tender years belongs to the mother is just an application of the principle in appropriate cases.
“The modern rule begins with the principle that the mother and father of a child have equal rights to the child’s custody,” he explained.
Ngugi stated that there was no reason to limit legal custody to one parent only if there was no evidence that either parent was unfit to take on the role.
The judge stated in a case involving a couple fighting for custody of their two children, ages nine and fifteen, that the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases.
The couple allegedly married in Alabama State in the United States of America but divorced in 2010 due to irreconcilable differences, according to the facts of the case in court.
The couple had one child at the time of their divorce on November 20, 2010.
However, romantic love blossomed between the couple again soon after their divorce, and they moved in and had a second child in 2013.
“All the while, father, mother, and children lived in the United States with the children, despite the fact that they did not remarry,” according to a portion of the judgment.
It was stated that in 2015, the couple agreed to return to Kenya and establish a family business in the hotel industry, with the man arriving first, followed by the elder child later that year, and the woman arriving in 2017 with the second-born child.
“As originally conceived, the plan was for the Appellant and Respondent to continue living together as a couple in Nakuru, where they would raise their two children.”
According to the facts in the judgment, the appellant, who is the mother of the children, moved in with the Respondent at his home in Milimani, Nakuru, and stayed for a little less than two years before returning to the US in 2019 when her plans to start a sustainable business failed.
The judge stated that the parties disagreed on what happened during their two years together in Kenya, as the man claimed that he established a business for his partner, but she allegedly abandoned it and the two children and returned abroad.
The court noted that the woman on the other side insisted that the Respondents’ parents had promised them jobs, a house, a car, and a business if they returned to Kenya, but the promise was never fulfilled after she returned.
“She returned to Kenya sometime in July 2021.” “She admitted that she intended to renew the two children’s American passports so that she could return to the US with them,” Ngugi said.
He stated that the parties disagreed on whether the woman was acting in accordance with their previous agreement or whether she was now acting unilaterally, because the only existing agreement, according to him, was the one they made in 2015 to relocate and raise their children in Kenya.
Fearing that his spouse would take the children back to the US, the man filed the case in Children’s Court. He also feared that if they relocated back to the US, he would not have free or easy access to the children because he was no longer a Green cardholder.
He requested that the lower court grant him legal and actual/physical custody of the minors.
The man told the magistrate’s court that he was shouldering all of the minors’ responsibilities and was willing to do so if the defendant refused to share.
The lower court granted the man custody, but his wife filed an appeal, claiming that the trial court erred in its decision.
According to the evidence presented in court, the man had lived with the children since they were four and eight years old, respectively.
Ngugi stated that the mother’s suitability must be considered alongside other factors such as the fact that the children have been in the physical custody of their father for at least the last four years.
He also considered her intention to relocate to the United States and the difficulties the Respondent would face in not only accessing the minors but also enforcing any orders of the Kenyan Court once the children were outside the jurisdiction.
“The children’s kin and kith live in Kenya.” “If they move to the United States, they will lose the network of family support and bonding that exists in Kenya,” the judge stated.
Justice Ngugi ruled that the couple will share joint legal custody of the children, with the father having actual/physical custody of the minors.
He also ordered that the minors’ passports, which were in the mother’s possession, be returned to them immediately.
