LEGAL AID: I’d like full custody as my son’s mum is an unfit parent

Wednesday March 18 2020

I am the father of a four-year-old son. PHOTO | FILE


Dear Sir,

I am the father of a four-year-old son.  His mother got a job transfer recently to a place she did not share with me and she was to take the child with her but I had already paid his third term school fees so he stayed behind with me.

She told me that I would stay with him only for this third term then she would come back for him once the schools close for the year.

She knows that I am a better parent than her but she says that she is the one with the right to live with the child. I won’t argue with her about that. I will let her take him.

My question is l: Can I claim the child back if she won’t be staying personally with him, because for the period have known her, she will most probably hand him over to her sister or her mother for schooling because she loves money?




Dear Jay,

In your estimation, the mother of your four-year-old son demonstrates inadequate parenting skills, yet you are willing to let her take him.

You intend not to physically resist nor argue with her when she resurfaces from the “unknown place of transfer” to pick your son at the end of term three of school and invite legal redress approaches, for which you seek clarity.

While it is not in the purview of this platform to determine whose parental skills are superior among you, you raise four fundamental legal issues regarding children and parents.

One is the capacity for parenting between father and mother. Two, the principle and concept known as the best interest of the child.  Number three touches on the custody of a child caught between feuding parents, while four alludes to processes followed whenever such issues emerge.

For starters, Article 53 of the Constitution bestows equal parental responsibility to both parents whether they are married to each other or not.

Therefore, a presumption of capacity to parent exists in law, not unless the court advises otherwise upon contestation. As such, no parent can claim superior parental responsibility over the other.

Nonetheless, matters of children, irrespective of the adjudicative forum are guided by the principle of “the best interest of the child.” In this case you raise the issue of custody.

You ask, who between the two of you is legitimately entitled to physically remain with the child? Either of you has an equal chance although the courts tend to grant children of very tender ages to their mothers, if their conduct, demeanour and character is not discreditable. Any parent, guardian or person can get custody of a child if they lodge an application to that effect.

They must demonstrate that they have been living with the child for at least three months prior to the application.

If not parents, the other person must have had permission from the parent or guardian to do so.

However, any other party interested in child custody separate from the afore-described must show how the best interests of the child may suffer or be injured should they not be given such prayers.

To arrive at the ideal situation both of you have several avenues to follow. Note, though, that courts are reluctant to adjudicate matters where other forums with equal capacity can suffice.

If you directly move to court, the judge or magistrate may decide to afford you a court-annexed mediator.

Alternatively, you may seek services directly from such a person, or proceed to the children’s office in your jurisdiction for consensus regarding the custody of the child. Upon failure to agree, you then decide to file suit of custody in court.

Whichever forum you decide to exploit, the following aspects, inter alia, guide the process and decision arrived at: i) wishes of the child;  ii) wishes of the parents, guardian, or any other person to have had custody of the child; iii) culture and religious background of the child; iv) parent-child relationship bond; v) parenting abilities of each parent; vi) physical and emotional health and vii) available support systems of each parent.

Should the mother convince the court or mediator that she is best suited to have custody, be aware that she may also be granted some maintenance from you till the child reaches the age of eighteen.

We may not appreciate the gravity of your differences, but we can advise that before proceeding to court, it is in the best interest of all parties concerned, including the child, to pursue other dispute-resolution mechanisms, including traditional ones, as they are also provided for in law.



Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]