Case Analysis: Can Fathers Get Custody of Minors?
Analysis of the Nakuru High Court Children's Appeal No. E011 of 2021, in which judgment was delivered on 5th April 2022 by Hon. Justice Joel Ngugi.

Background and Key Facts
The Appellant (Mother) & Respondent (Father) were married and lived most of their lives in the United States. In 2010, they mutually agreed to get a divorce; by this time, they had one child, SCKK. By the terms of their agreement entered into as part of the divorce settlement, primary custody of SCKK would be awarded to the mother, and the father would have defined visitation privileges.
Strangely, the parties reconciled, moved in together, and bore a second child- JJWK but did not remarry. In 2015, the Respondent, after consultations with the Appellant, decided to relocate back to Kenya. The plan was for the Respondent to first relocate to Kenya, settle, get a foothold, and then, later on, have SCKK, and the Appellant, together with the younger child relocate back to Kenya. SCKK joined the father in late 2015 and was enrolled at a particular school in Nakuru, where he remained till the determination of this matter.
As per the plans of the two parents, the Appellant came to Kenya in 2017. She brought JJWK with her. As agreed, this was a “look-see” visit: she was to stay for a while in Kenya as she explored business ideas to see if she was comfortable moving back to the country. She remained in the Country for a little less than two years. She left the country again in 2019 to return to the United States when the plans for her to have a sustainable business failed. The parties disagree on what happened when the Appellant was in Kenya between 2017 and 2019, but of importance is that the Appellant voluntarily left behind both minors in the actual custody and care of their father.
The upshot is that the Appellant came back to the country in mid-2021 and began plans to travel back with the children to the United States, the Respondent panicked. He was distressed that the Appellant would take the children back, although he thought the children were well settled in Kenya and that the move would severely disorient them. He also feared that since he was no longer a Green Card holder, he would not have free or easy access to the children if they relocated back to the United States. Triggered by these and other concerns, he initiated a case in the Children’s Court when he became convinced that the Appellant planned to take the children to the United States without his approval.

Issues for Determination
In his plaint dated 1st September 2021, he prayed for Judgment against the Appellant for, among others, legal and actual custody of the minors. In its Judgment dated 3rd November 2021, and after hearing both parties, the Court held in favour of the Respondent and awarded the father legal and physical custody of the minors, among other reliefs. The Appellant, being aggrieved by the entire Judgment and Decree of the Trial Court, appealed to the High Court, and that is the basis of this instant Appeal.
After considering the Memorandum of Appeal, evidence on record, and submission by parties, the learned Judge stated, “After all is said, the single issue for determination remains, who should have the legal, physical, and actual custody of the minors herein. It is an especially poignant issue because the two parents have indicated an intention to live in two different continents going forward: the Appellant wishes to relocate to the United States; the Respondent wishes to remain in Kenya. This is particularly important because of the difficulties in accessing the children, the parent who is not awarded physical custody would have.”
In determining that single issue, the court had to first address three preliminary issues before delving into the substantive factors. The three were; that no evidence on record that either party is an unstable parent, secondly, by the evidence, that each of the two parents were quite financially capable of taking care of the needs of the two children and Thirdly, the question of alleged sexual indiscretion as a factor disentitling the Respondent from custody of the children, in dealing with this the court held that the allegation was unproven and at the worst, it was falsified by available evidence.
Having paved the way for the substantive issues, the Court addressed the applicability of the Child of Tender Years Doctrine. His lordship expressed that historically, under Common Law, the custody of children was given to their fathers as part of their property rights. This was until the introduction of the Tender Years Doctrine, which some historians attributed to the specification of gender roles during the Industrial Revolution. Over time, the doctrine continued to evolve with many Courts in various jurisdictions moving away from the doctrine to the more inclusive ‘best interest of the child’ principle. In highlighting the evolution, his lordship cited the Supreme Court of Canada decisions in Talsky v. Talsky, [1976] 2 S.C.R. 292, which provided for the tender years doctrine, and Young v. Young, [1993] 4 S.C.R. 3, for the best interest of the child.
The Learned Judge thus opined, “it is apparent that while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law. This is not to say that the substance of the rule has dissipated completely; it is to say that its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of the Constitution. Differently put, the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases. The judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.”
After properly calibrating both the Tender Years Doctrine and the Best Interests of the Child principle, the Court was of the view that custody should be awarded to the Respondent and gave five reasons.
First, the children were with the Respondent for a significant time immediately preceding the suit. The period in question was more than 6 years for SCKK and more than four years for JWKK. They had adapted to the social-cultural and educational environment and had fitted into the socioecological milieu. More importantly, they had bonded with the Respondent as a primary parent. To yank them out of this environment would no doubt cause psychological trauma.
Second, the Appellant’s plan to relocate the children out of the country and jurisdiction. This was an important factor because it removed/ made it unreasonably difficult for the Respondent to have access to the children or to participate in their upbringing without unreasonable expenses and inconvenience. Additionally, once out of the jurisdiction, it would be difficult for the Court to enforceably review any custody decisions it made or supervise them.
Third, not unimportantly, the kin and kith of the children lived in Kenya. If they were to relocate to the United States, they would not have the network of family support and bonding that is happening in Kenya.
Fourth, two experts (Children Officers) expressed strong opinions that the two children’s best interests would be best served if the children remained with their father in Kenya.
Fifth, after interviewing the minors, the court was confident that the two children were quite comfortable in the custody of the Respondent, their father.

Determination
In making its final Judgment, the Court noted that the decision of the Trial Court was largely on point legally and factually. Its core was correct. However, there was only one aspect of the decision that the Appellate Court departed from, the question of legal custody.
The Court stated that in the present case, given that there was no evidence that either parent was unfit, it was unnecessary to grant legal custody to one parent only.
Therefore, it varied the Trial Court’s decision by holding that the legal custody be shared between the parents, the Respondent to have actual/physical custody of the minors, that is for SCKK and JJWK to reside with their father in Kenya, The mother to have unlimited access to the minors when in Kenya and when outside Kenya, to have unimpeded access to the minors through telephone, video calls and email or through some other use of technology.

Conclusion
Based on the decision above, we reiterate the ruling of the Honourable Court that “The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.” In addition, when determining custody matters, the best interest of the minor is paramount.