Man fighting for custody with in-laws
Friday 5th February 2021
BY SAM KIPLAGAT
- In a society where few men play a supportive role in raising children, the death of a woman means handing over a child to in-laws.
- A man and his aging in-law are embroiled in a bitter struggle for custody of a six-year-old minor who is currently being looked after by her maternal grandparents in the Embu district.
- With the matter waiting to be resolved by the appeals court, the judges will grapple with the question of who between the opposing sides should get custody of the girl whose mother died in childbirth in 2014.
What if your wife dies leaving you with an infant? Do you raise the child or do you give it to relatives?
In a society where few men play a supportive role in raising children, the death of a woman means handing over a child to in-laws. But that can haunt you years later.
A man and his aging in-law are embroiled in a bitter struggle for custody of a six-year-old minor who is currently being looked after by her maternal grandparents in the Embu district.
With the matter waiting to be resolved by the appeals court, the judges will grapple with the question of who between the opposing sides should get custody of the girl whose mother died in childbirth in 2014.
The matter has been in court corridors since 2017, when the father, identified as an OGM to protect the child, filed a case before a judge in Kerugoya to compel his in-laws – FG and PGM – to release his daughter.
The judge granted custody of the girl to the grandparents until she was 11 years old and the order could be reviewed. However, the decision was reversed by a High Court judge last year. There is no provision in the law that provides that grandparents have custody of the child.
However, the decision was overturned by the appeals court and the grandparents turned the minors over to the court pending a decision on the appeal.
The appeals court judges said that since the minor has lived with the grandparents for six years, it would be best if they continued to stay with her pending the hearing and the ruling on the case.
It was proven in court that the mother of the child died after the birth on July 8, 2014.
Shortly after learning of their daughter’s death, FG and PGM rushed to the hospital and offered to stay with the infant while the father settled the medical bill and arranged the funeral.
After the funeral, he asked his in-laws to continue caring for the minor as he made arrangements to welcome the newborn daughter home. The in-laws promised to give him the baby as soon as he settled down. In the meantime, he was given full access to the minor.
Although the grandparents accommodated the minors, he provided all financial assistance to meet their needs; Food, medical expenses, clothing, and all other necessities.
When he believed he would be ready to accept the baby a year later, the in-laws refused and forced him to go to court.
The man argues that he is gainfully employed, able and willing to care for minors, and is the only living parent.
He argues that his desire was to provide his daughter with a stable, loving home, but the grandparents refused to let the child go.
He told the court that his in-laws advised him to look for elders first, as they discovered that there were certain cultural customs, including paying dowry, that he had to comply with before accepting the minor.
He did as recommended, paid the requested dowry of Sh 20,000, but they again refused to give him the minor and allegedly expelled him from their home.
After hearing the case, a judge in Kerugoya rejected his application and gave custody of the minor to the grandparents. The court said he could still access the girl and take care of her needs.
The judge found that if the child is handed over to the father, who remarried, the child will be placed in the care of a “stranger” and his safety cannot be guaranteed.
He appealed to Supreme Court Justice Lucy Gitari, who overturned the ruling, saying grandparents have no right to take parental responsibility for a child when their parents are alive and have the resources and are ready to voluntarily assume parental responsibility.
“The child has a right to parental care and it may not be in his or her best interests to deny the child that right. The (children’s) law stipulates that the father assumes parental responsibility even if the father and mother were not married, ”said the judge.
She noticed that OGM had connected to the child because of access and even called him father.
“The child’s best interest is that they be raised by their only surviving parent who is ready and willing to take responsibility for the child,” she said.
However, since the grandparents were unwilling to simply give up, they took them to the appeals court. They argue that the judge did not appreciate that the minor had lived with them continuously for six years and that any change in the environment (Nairobi) would have a negative effect on her minor.
They said it was inappropriate for the judge to grant the father custody, care and control of a young girl without demonstrating the existence of exceptional circumstances, rather than allowing them to continue to perform that role subject to visiting rights.
“We find this point questionable, even though they may not ultimately be successful,” said Judges William Ouko, Roselyn and Hannah Okwengu.
Under Section 9 of the Children’s Act 38 of 2005, the best interests of a child are of paramount importance in all matters relating to the care, protection and well-being of a child.
They instructed the girl to return to Kerugoya pending the appeal.
“This will prevent the minor from being destabilized by moving again if the applicants succeed in the appeal process,” the judges said.