LEGAL AID: Help me get my daughter back

Hi Eric,

I have a young daughter from a relationship in which we were co-habiting. When the child was only a year old, her mother travelled abroad and left her behind. During the holidays, I used to take the girl to visit her grandfather but he later refused to release her back to me and started denying me access to her. I have tried to take him to court but it feels to me like my lawyer is compromised and has taken the grandfather’s side. What do I do?

Hey man!

As a man, I wish to congratulate you for opening up. Psychologists and counselors have consistently highlighted how it is difficult for men to share their relationship problems especially those touching on emotions and family. Your narration provides a legal and social learning journey for our readers and those of us in similar situation to adjust how we view unfavourable relationship outcomes that must be dealt with. The issues you have raised are weighty for any father who loves their child, more so a daughter as it is your case. You have shown that access to your daughter has been and continues to be curtailed for unknown reasons. Second, though not very pronounced is custody of the girl, which you have explained was well till after a specific holiday when the grandfather took over without any consultation with you; and third are the options you have in finding favourable result with regard to your daughter’s wellbeing.

The law is clear. The Constitution of this country at Article 53 (1-e) directs that a child has the right to enjoy protection and parental care from both parents, notwithstanding their marital status. The legal opportunity for both parents to enjoy quality time with their daughter or son, outweighs and defeats any social preferences and cultural biases besides philosophical differences that may prevail between families in which the child is born. The law doesn’t prejudice any of the parents, father nor mother with regard to the rights of the child, neither does it empower auxiliary care takers such as grandfathers to interfere, not unless there is proof of neglect and abandonment on your part. Even though the society may view negligence by lenses that mirror reduced social ties between larger families, the Kenyan law and courts envisage individualised acts of abuse, denial of basics such as food, education and fundamentally love.

LEGAL ISSUE

As mentioned, custody is the other legal issue you allude, which is the physical possession of the child in particular the place where they reside. Parental care includes ensuring that children have shelter over their heads, nonetheless, this must be exemplified by the threshold given in Children’s Act at Section 83 (1) within the overriding best interests of the child principle captured at Article 53 (2) of the Constitution. These include wishes of natural parents, foster parent or guardians who have custody of the child, as is the case with the grandfather of your daughter, and the child (if in a position to speak their mind), parent-child relationship bond, parenting abilities, besides the mental, physical and emotional health alongside relevant accessible social support system. Your situation indicates that you have no custody of this child.

Having stated the legal issues that constitute your dissatisfaction with the how the welfare and rights of your daughter are being handled, there is need to identify the avenues before you in seeking to arrive at possible solutions. First, there is an opportunity for direct discussion with the mother of your daughter, whose outcome can then be shared with the family unit for execution. Second, upon failure of the first strategy is to invite larger family representatives from both sides of the aisle in close consultation with the area children officer(s) for a negotiated approach that will allow you to access your daughter and even agree on custody arrangements. If the results of these approaches don’t create amiable solution, then filing a petition in children’s court is necessary and your prayers in this matter will be access, which may include visitation rights and custody. The court will consider the many things herein mentioned in determining who deserves to be the care giver of the girl. If the mother will be around, the court may have to make a decision on custody by considering the sex and age of the child. Generally, children and in this case a baby girl of tender age are often left with their mothers. You say that the lawyer is on their side, but it’s not he/she who makes decision but a magistrate. It is difficult to follow up on this statement because its blanket and explains nothing legal, but should you feel shortchanged there is an opportunity to contract another lawyer, if at all the matter is in court.