Big win for men in child custody wars. This is a headline that has really excited netizens in the digital space. Two years ago, a couple parted ways and the man later moved to court seeking custody of their three children.
Court advised them to pursue mediation which ended with both parents agreeing that the minors should live with their father. This was because their mother was cohabiting with another man and together they had a child.
She was however tasked with the responsibility of providing monthly shopping for the children.
It was also agreed that both parents would cater for the kids’ medical care and that they would transfer the children to other schools after the separation was finalized.
Prior to the finalization of the separation, one of the children moved in with their mother and her new lover. She transferred the minor to a different school and asked court to compel their father to continue paying school fees.
Court ruled in the man’s favour directing her to pay fees as she had made the decision to transfer the minor without consulting the father. So this is the court decision that inspired the headline ‘Big win to men in child custody wars’
Article 53 section 1(e) of the Constitution states that every child has the right to parental care and protection which includes equal responsibility of the mother and the father to provide for the child, whether they are married to each other or not.
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So, how do courts assign responsibilities equally and fairly to both parents? Section 76 subsection (3) (f) of the Children’s Act addresses this: It states, where the court is considering whether or not to make an order with regard to a child, it shall have regard with the following matters: the ability of the parent to provide for and care for the child.
Among other factors courts also consider are:
- Wishes of the child with consideration of their age and comprehension
- The child’s physical, emotional and educational needs. If the child has a disability, the ability of the parent that can provide special care is highly considered.
- Any harm the child may have suffered for example the man is a drunkard and has in the past left the child locked up at home. The courts also looks at whether the child is at risk of suffering.
It is important to note that children’s basic needs according to Section 23 of the Children’s Act are:
- Food
- Shelter
- Clothing
- Education and
- Medical Provision
If one of the parents is ditching responsibility, they should take them to court and in the event they cannot reach them:
- The court may serve summons to the absent partner via Whatsap and Email. If they blue tick on Whatsapp, then it is assumed they have received the summons.
- If they don’t honour the summons then the case proceeds and the parent whose taken the other to court gets court orders. The orders are on how they should share responsibility.
- Failure to oblige to the court orders, one is held in contempt of court and what follows is arrest and committal to civil jail.
- Other ways in which summons may be served are; in person either at the person’s work place or home. It is important to note that in the event the guards at home are on strict instructions not to let in the person serving the summons, then the law allows the person to display the documents in a conspicuous manner in a way the absentee cannot miss the message so for example, outside your gate
- Finally, summons can be served via substituted service. This is basically where the summons are posted as adverts in newspapers.
For more of this explainer videos, do keep it TV47. I’m Gachambi Nderitu
