Who Keeps Children After Divorce? Court Guides

GUEST ARTICLE: Who Keeps Children After Divorce? Court Guides

By Dickson Jere

A married couple had a tumultuous marriage that led to an acrimonious divorce. The two had a two-year old baby together. So, after the divorce was granted by the High Court, another legal battle ensued. This time around, it was about custody of the only child of the couple.

Who keeps the baby? That was a big legal quagmire.

The battle went to the High Court in which the man argued that his ex-wife was irresponsible and could not take care of the baby. He contended that he was a suitable parent to keep the baby. His said ex-wife was “vicious, contentious, domineering woman with ungovernable temper and a woman without decorum”.

After hearing both sides, the Judge ruled in favour of the ex-wife saying there was no evidence strong enough to show that she was irresponsible and that the baby was much better with the mother given the tender age.

This ruling prompted an appeal in the Supreme Court in which the man insisted that his ex-wife was temperamental and could not keep the child. He contended that he was a better parent and capable of looking after the child better.

Three Judges heard the appeal and determined thus;

“It is clear that both parents love the infant and that each one of them would clearly love to have custody and care and control of him,” the Judges observed.

“The general principle regarding custody of children is that the paramount consideration is the welfare of the child,” the Court said.

The Judges explained that there is more to look at between the two parents far beyond the issue of money or responsibility of the parents when granting custody orders.

“It has been said that the welfare of the child is not to be measured by money only nor physical comfort only,” the Court observed.

“The moral and religious welfare of the child must be considered as well as his physical wellbeing, nor can the ties of affection be disregarded,” the Court said.

After analyzing the evidence, the Judges concluded that the mother was not bad at all given what was adduced in Court.

“It is clear that both parents are loving parents who wish nothing but the best for the infact,” the Judges said, adding that looking at the tender age of the child, it would be better to be given to the mother.

“In coming to this decision we are mindful of the fact that custody orders cannot be permanent and can be varied from time to time at circumstances of the parents change,” the Judges ruled.

The Court also ordered that the father be allowed liberal access to the child.

Case citation – Stoyke v Stoyke – Appeal No. 67 of 1998.

Lecture Notes;

1. This case underscores the principle that any one of the parent can have custody of the children of the family provided that he or she is responsible. However, when the child is very young, the preference is to give custody to the mother because of the natural affection children have with their mothers. But if the mother is irresponsible, the man can have custody. Simply, it depends on the evidence of who is responsible parent.

2. When deciding custody, the Court will not look at the financial capacity of the parent but rather what is good for the child including general welfare such as religious, cultural values, home and so on.

3. The custody issue can be changed at any given time by the Court by way of varying the Orders if the circumstances of the parents have changed. In short, the orders are not permanent.