Gender Dimensions of Court Awarded Child Custody: a Case Study of the Nairobi Children’s Court

Abstract

This was an exploratory study on gender based dimensions of Court awarded child custody with focus on the Nairobi Children’s Court. The study examined six key informants knowledgeable in child custody law and gender issues. The study examined four in-depth interviewees for their experiences as litigants at the Nairobi Children Court. A sample of 30 court cases comprised the study population and data was obtained through key informant interviews, in-depth interview schedules and content analysis schedules. The study was guided by the attitudinal theory. This study could be described as a text analysis aimed at understanding the reasoning of the courts when awarding custody. For this study, and in accordance with legal theory, the courts verdicts were taken to reflect the main frame, if not the full line, of reasoning. From the findings, it appears that courts are guided by the best interest principle when making decisions in a child custody matter. The assessment of what constitutes best interest however, seems to produce differing results as circumstances vary from one case to another. The result may be that mothers get custody often but that does not mean that the judicial officers uses their bias on gender to pre-determine the custody. The study concludes that the best interest principle has done little to free the judiciary of the gendered construct of men and women’s division of labour at the home front. The ideology of motherhood and fatherhood is closely associated with the gender roles prescribed by society. The study further concludes that perceptions of bias hinder access to justice in the short term but does much bigger harm to the fight for gender equality between men and women. The study recommends that judicial officers should clearly set out their reasoning in their decisions of custody and reaffirm to parties that they are acting in the best interests of the child and will be serving neutrally, with their sole goal being an advocate for the child. It also recommends further studies in to the phenomena of gendered child custody awards with a bid to fostering open discussion about it and aid in reforming the judicial and legal systems to rid itself of perceptions and instances of actual gender bias in child custody cases.