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Cohabitation: Who keeps the children when parents separate?
Publish Date: Feb 19, 2014
Cohabitation: Who keeps the children when parents separate?
A sad boy and his mother. Both parents still have an obligation to provide for their children, even after separation
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Most couples are hoping for a happily-ever-after when they settle down and have children. But due  to irreconcilable (and sometimes reconcilable) differences, many relationships do not work out. This takes a toll on all parties involved, especially the children, writes Job Bwire
When Enid Tuhirirwe, the estranged partner of the Kabula county MP, James Kakooza, went to court in 2011 seeking custody of their two children, dissolution of their four-year marriage, and a fair share of her husband’s property, she hoped for good results.
However, she lost the case. Makindye Chief Magistrates' Court ruled that the couple were not formally married but merely in an informal relationship.
Consequently, court ruled that the custody of their two children, both below eight years, should be transferred to Kakooza on grounds that Tuhirirwe was incapable of taking good care of them. During the hearing of her case, Tuhirirwe had told court that they were married under the customary law (Kinyankore give-away ceremony known as kuhingira).
The court established that although Kakooza had, on some occasions, visited the woman’s relatives, there had been no official introduction ceremony to confirm the marriage and that no bride price had been paid.
Yet, according to the law, in order for a union to be regarded as a marriage, the parties must have met all the essential cultural requirements prescribed for validity of a marriage under customary law. This is according to the Customary Marriage Decree, 1973, Section 16. 
According to the evidence presented in court, Kakooza and Tuhirirwe met in 2007 and started a relationship. She moved in with him. When she got pregnant with her first child, Kakooza requested to meet her parents in Mbarara district.
He was fined sh1.5m upon his visit in June 2008. Some witnesses also told court that Kakooza visited the second time with sh4m, a jerrycan of paraffin, a box of soap and other gifts.
By the time she got her second child, the two had already developed misunderstandings, which subsequently saw her leave their home in Makindye. She sued Kakooza. 
“The parties in this case did not satisfy all the formal and essential requirements prescribed for the validity of a marriage under the Kinyankore customary law, and, therefore, there is no marriage between the petitioner (Tuhirirwe) and the respondent (Kakooza),” the presiding magistrate, Ester Nambayo, said.
In her ruling, Nambayo stressed that court could not dissolve a marriage that never took place. Kakooza and all his witnesses said they visited only once to establish the parents and home of the petitioner (Tuhirirwe) and did not go back to pay bride price as alleged by Tuhirirwe.  
 Kakooza (LEFT) and Tuhirirwe (RIGHT) outside court
Who is entitled to the custody of children?
According to the Children's Act Chapter 59, the child’s welfare and upbringing shall be of paramount consideration in the event that parents break up. As regards custody, children aged eight years and below are normally expected to stay with their mother, unless she is not physically fit or has no means to take care of the children.
And where the custody of children is taken away from the mother, she should be free to visit them as often as she pleases, according to a 1978 ruling by the then Justice Benjamin Odoki in the case of Pulikeria Nakagwa vs Dominiko Kiggundu.
Using this case as precedence, Nambayo ruled that Tuhirirwe was a young woman (30 years of age), unemployed and without income. Nambayo also stated that Tuhirirwe's place of residence was unknown and that it was also not clear whether she owned any property since she had sold the only car she had, thus making her incapable of guaranteeing her children’s welfare.
 Kakooza’s lawyer, Ernest Kalibbala, also argued that although Tuhirirwe was the biological mother of the children, she did not fit the description of a parent who would ensure the best interests of the children. 
On the other hand, he argued, her estranged spouse (Kakooza) had a job as MP. Besides, Kakooza, who also had two older children, had single handedly brought them up after their mother’s death in 2001. “It would, therefore, be good for the children to be brought up in the ente (Kakooza’s) clan,” Kakooza’s lawyer argued. 
Through her lawyer, Felix Kintu, Tuhirirwe had further asked court to order the MP to continue providing maintenance to herself and her two children. She accused him of adultery and having an incestuous relationship with one of his daughters.
Tuhirwe’s relatives also gave conflicting accounts about the supposed kuhingira. Tuhirirwe’s aunt, Norah Ngino, said it was the girl’s brother who gave her away to Kakooza. However, all the other witnesses, including her mother and brother, told court that it was her aunt, Ngino, who gave her away to Kakooza. 
“I therefore find it strange that the girl’s aunt, Ngino, who is named as the person who gave the girl to Kakooza, also names another person. Besides, it also sounds dramatic when all witnesses say as soon as the girl was handed over to Kakooza, she went into labour pains.
From the above evidence on court record, it is my finding that although the children are of tender age, their mother is a very unstable character and I find it very risky to give her the custody of the children,” Nambayo ruled.
On whether Tuhirirwe was entitled to alimony (support), Nambayo also ruled that a request for maintenance based on an alleged marriage which never took place could not be sustained.
What experts say
According to George Musisi, the legal officer with Foundation for Human Rights Initiative, the Constitution and the Children’s Act spell out the obligation of both parents in providing for their children. 
“But the general principle in law is that if the child is below 12 years, the mother gets custody. However, there are other considerations. For instance, if the mother has no proper means of supporting the children and the man is in a better position to do so, then custody is given to the man,” Musisi says.
Musisi stresses that the welfare of the children comes first in whatever circumstances. “However, a parent is normally granted freedom to visit the child at any time and place he/she pleases without any unnecessary interference,” Musisi says.
Jude Walubo, the country programme coordinator of Universal Chastity Education, feels that the mother is supposed to take custody of the child, in case the child is very young when a couple separates. However, Walubo insists that both parents need to be involved in the upbringing of the child to secure his or her welfare and future. 
“But if the mother is anti-social or an addict, for instance, a drunkard, then the man should be given an opportunity to take custody of the children,” Walubo says.
Martin Kiiza, the secretary general of the National Council for Children, notes that the law provides that children have a right to enjoy the care of both parents. 
“And in the event that there is separation and issues of custody for the children, we treat that as abuse of children’s rights. Thus the parents are held answerable in such situations,” he says.
He adds that in cases where both parents cannot guarantee the welfare of the children, they may be given to foster parents.
If the father has never been present
In scenarios involving absentee fathers, if the father shows up at a certain point in the child’s life asking for custody of the child, court can still grant custody in favour of either party, depending on the circumstances and evidence before court, according to Allan Gakyalo, a senior defence lawyer.
“In this case, the court considers the side that is capable of guaranteeing the child’s welfare. That is, if the father has a proper means of survival, such as a job, is morally upright and financially stable, among others, then he can be granted custody of the child if the mother is not in position of guaranteeing the welfare of the child,” Gakyalo says.
“However, the child must be above 12 years of age because any age below that, court will also consider a number of factors, including the circumstances under which the man abandoned her and the emotional attachment between the mother and the child,” he adds.
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