Custody rights must be in child’s interest

Last week, High Court judge John Ngugi ruled that a father can be the primary caregiver, and be awarded full custody of children after a divorce or separation. This is a much-needed win for men, who are generally considered incapable of being the caregiver as opposed to the breadwinner.

But, will this ruling be a win for the children? Unlike other gender-related matters, the ruling should not turn custody cases into a battle of the sexes!

Parents embattled in a divorce case are often in a quest to get even and they will do anything to come out the winning party. In the process, children become the high-priced chattel to be ‘awarded’ to the parent who considers themselves the most deserving.

Yet custody is not about the parents’ marriage. It is about the child’s best interests. Whatever the parents’ grounds for divorce, this is not the time to use it as a sword to kill off the chances of one parent having custody of the children.

The conduct of the parent in raising the child should be one of the key deciders. Were they a good parent before the divorce; meeting their parental duties? If they are, then they should not be denied custody.

It doesn’t help much that relatives of the child are allowed to have a say on custody matters, often causing more aggro, frustrating the process while not acting in the best interest of the child.

In this emotional turmoil and hurt, the child is the one who needs to have their voice heard as much as the parents. Despite children being impressionable and often playing favourites with their parents when it suits them, allow them to have an opinion on who they would prefer as their primary caregiver.

Should the child make a decision that would not be in their best interest, at least they were included in the decision that will heavily impact on their life. In any event, if the child’s decision is grossly erroneous, the court has the final say on who gets custody.

Though we turn to the courts to resolve our disputes, we cannot ignore the fact that the court can also come to the wrong decision. As was the case presided by Justice Ngugi, the father was initially denied full custody in the magistrate’s court after the mother abandoned the children, on the basis that a father cannot be a primary caregiver. If we are going to act in the best interest of the child, our own Judiciary must also get rid of its own prejudices that in the long term do more harm to the child.

Custody was never designed to be a competition and battle. It is solely there to ensure the parental rights and duties of the child are met. If it was a competition, then it would defeat the purpose of having varied forms of custody ranging from full, joint and even being awarded to a guardian.

In balancing your wants as parents in your dispute, let the child’s welfare be of paramount consideration. For mothers, tough as it is to hear, no longer is your maternal bond the ultimate decider in custody. For fathers, the child’s best interest could change over time. Will you be willing to adapt to meet them?