Is a mother the better parent?

Two-and-a-half years ago, 33-year-old Titus Kinoti was a desperate man.

His two-year marriage had broken down and his wife had moved out with their one-and-a-half-year-old daughter.

While he still provided for them financially, his wife was unstable and was battling an alcohol problem which left his little girl unattended for long periods of time.

Occasionally, she would even dump the child with him as she went on a drinking spree. He was desperate to have primary custody of his little girl.

First, he approached the children’s officer in his area who advised him to file a case at the high court where, after examining his case, a magistrate gave him two options: to either present his mother for the court to grant her custody or to get married, the reason being that the child was too young to be put under his sole care.

Neither of these options was viable to him at the time and he gave up his chase. Today, the two parents are still embroiled in a back and forth over the now four-year-old girl.

Titus believes that he is the better parent but his willingness has been reduced to a child support payment. Does this mean that a father is not essential in raising his child further than a few pay checks?

Are our court systems biased against fathers when it comes to child custody? 

GENDER ROLES

I pose these questions to Nairobi lawyer Kennedy Osoro, who has experience litigating child custody cases.

He agrees that going by statistics, the courts do award custody to more women than men. He is however quick to explain that this pattern does not show judicial gender bias.

He explains that during a child custody battle, the Children’s Act dictates that the court examines the conduct and wishes of both parents and, if the child is old enough, adhere to the child’s wishes.

The court then makes judgments based on the best interests of the child. In custody cases, stability is key. The court settles for the arrangement that will cause the least disruption in a child’s life; this can only be upset by poor behaviour from the custodial parent.

It looks like gender roles which the feminists have been fighting tirelessly have come back to haunt the fathers of this generation.

The feminisation of the home front naturally means that a woman has more time, a greater inclination and a better understanding of the child’s daily needs putting her at an advantage should she need to contest for child custody.

A mother is more likely to get custody unless she is proven to be a danger to herself or others by being abusive or having an addiction.

Sadly, the view of the mother as the sole caregiver isn’t only an assumption but a reality in most Kenyan homes.

It also appears that the men also think of the mother as being the primary and irreplaceable caregiver. Take Gerishon Gitau for instance.

He filed a case for the custody of his two children aged eight and 10 last year. When his lawyer advised him that he must be able to prove his ability for child care he backed down and instead settled for an out-of-court settlement where he was given joint custody.

NURTURING FATHERS

“It isn’t that the courts are trying to say that fathers aren’t essential, it is that the men don’t believe in their abilities as good fathers,” says Osoro.

From his experience, women are more likely to ask for full custodial rights. The men who actually file cases will usually seek visitation rights and when they seek custody, most do not put up a fight.

Again, it appears that these tired attitudes and presumptions shape a man’s decision to either seek child custody or not. If a woman doesn’t contest a custody case, she is seen as a bad parent, but a man can get away with it, perhaps explaining why few men file for custody.

Clearly, the fault isn’t with the court system but with our societal roles. This bias can only be fixed by encouraging fathers to be more nurturing in marriage, to be present during pregnancy and to be more involved during birth and beyond making him an equal child care giver.

We should challenge the reasoning that women are uniquely suited to raise children. The men who find themselves in these situations ought to actively pursue custody.

Most fathers usually do not. True, men may have a harder time proving their child care abilities seeing as women are assumed to be able naturally but this doesn’t mean that she is automatically the better parent.