By Anita Otieno

A judge recently ruled that men can be allowed sole custody of children, revoking a long-held view that only women are primary caregivers. The judge stated that it is a misconception to assume that men cannot be primary caregivers but can only be breadwinners.

The Children’s Act provides for equal parental responsibility between the father and mother of a child. It states that if a child is born to married parents, neither of the parents has a superior responsibility over the child. However, the Act has a provision that if a child is born to unmarried parents, the mother has the initial parental responsibility, which the father can claim upon an application to the court.

This provision may seem controversial as it implies that the woman is the primary caregiver and has automatic custody over a child. As a matter of fact, most court cases on child custody always end up with judgment in favour of the mother, despite preferences of older children or even despite the father proving to be in a better position to take care of the child.

The Court ruling was an appeal from the magistrate’s court where a man lost custody of his two children. The magistrate’s court had ruled that it was impossible for the man 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. This ruling extends the traditional narrative that men can only be breadwinners in the family.

The man appealed the magistrate’s ruling where the Appeal judge stated that the magistrate had relied on stereotypes to reach her ruling. The judge stated that for this reason, she found the ruling problematic as the finding by the magistrate could send a message that “good” mothers stay home with their children while “good” fathers go out to “win bread” for the family.

The Children’s Act envisages equal and shared or joint parental responsibility between parents, regardless of gender. As stated by the judge, spousal infidelity, for which the wife was accused of, cannot form the basis of denying child custody to the mother, unless it rises to the level where it harms the children.

Two separate reports by children officers were filed in court. One stated that the children wanted to stay with their father while the other stated that custody of the children ought to be given to the mother.

It was ordered that the man and woman agree on how they would share custody and responsibility over the children, failure to which the court would make adverse orders on whoever refused to compromise.

This ruling is a positive step towards equality in society and eradication of discriminatory traditional stereotypes. It is an advancement of a better and equal society.