Good news to men who had been previously denied child custody. A High Court Judge Joel Ngugi ruled that men can be allowed sole custody of children, outdoing the traditional notion of women being the primary caregivers.
An estranged husband sought the help of a court following a child custody battle that ensued after he caught the wife cheating with their houseboy. When he first approached a magistrate’s court, it was ruled that it was impossible for him to have child custody and that it was safer for his wife to take custody before they ended up in the care of house helps and he lost custody of his two children.
“Although the plaintiff (JKN) was categorical that he will personally supervise the house girls, I find that this may work for a short while as a man, he shall from time to time be required to attend to his bread-winning duties and will soon leave the duties to the house girls,” ruled the magistrate.
The plaintiff then appealed at a High Court before Justice Ngugi. He told the court when he caught her in the act he gave her two choices: to either remain with him and the children or to go with the “boyfriend” but she chose the later leaving the children behind and the man was forced to get a house help to take care of the children. In her defence, the woman said her husband was cruel and not responsible and that it was within her right to marry again because he had not paid dowry.
“With tremendous respect, I find this reasoning to be dangerously problematic. It does no favours 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.
“At this point in the judgment, the learned trial magistrate does not apply the scalpel of the prima facie rule and its exceptions to the facts and context at hand. Instead, she uses the hammer of stereotypes to reach a conclusion,” said the judge.
Justice Ngugi ordered the man and the 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. He ruled that spousal infidelity should not be a reason for the woman to be denied custody unless it rises to the level where it harms the children.
According to the judge, child custody, whether actual or legal, should not be one parent’s struggle. He said the Children’s Act looks at custody as a shared or joint and it was wrong to assume that women are potential caregivers.