What are my rights as a grandmother?

Hi Eric,

I have a 16-year-old grandchild who lives with her mother, but she now wants to live with the father, who happens to be my ex-son-in-law. However, the mother refused to send any documents related to the child to her father. As the grandmother, do I have the right to ask for guardianship? The father can’t get the birth certificate as he is not named in it. It seems like my daughter wants our grandchild to live a hard life, yet we (grandparents) can afford better.

Dear Disturbed Grandma,

Ideally, as the Constitution of Kenya anticipates, parents are supposed to love and care for their children equally. However, it should be noted that such equality could be varied by different biological and gender functions of male and female, similarly man and woman.

Article 53 (1-e) of the Constitution provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. As a grandmother, you are right to get concerned about the wellbeing of your granddaughter.

Your concern raises the legal concepts of custody and guardianship. These are parenting concepts central to the protection and promotion of children’s rights. Children are supposed to be comfortable and peaceful, irrespective of their parents’ relationship.

You seem to say that your granddaughter lives with her mother, but she isn’t happy. You allege that your granddaughter wishes to stay with her father, but the mother will hear none of this. You suggest that the relationship between your daughter and the father of your grandchild is not conducive to her wellbeing.

As a grandmother, you have decided to protect your granddaughter from abuse, neglect, and every, or any form of violence. By this action, you fulfil Article 53 (1-b) of the Constitution. Custody flows from the principle and spirit of equal parenting; either of the parents has the right to stay with the child.

This is known as physical custody. Even then, the other parent without an actual child’s stay often has visitation rights in a manner determined by a couple of court. Your daughter’s conduct contradicts the Constitutional threshold of parenting. In addition, she is harming and abusing the rights of the child she gave birth to. Further, her action to deny the girl the right to be with her father is against the law. Your daughter needs to be reminded that her stormy relationship with her daughter’s father threatens the child’s best interest.

Your desire in legal confines of care is driven by the best interest of the child principle found in Article 53 (2) of the Constitution. This principle demands that anyone and every other institution dealing with children must always take or stop action, make or undo decisions, omit or commit to pathways that prioritise their peace, rights and needs. It does not matter that the child is found in situations where the relationship between their parents is strained, broken or violent.

You have a right to request a guardian for your granddaughter, but it must be attained through a formal court process. Under Section 105 of the Children’s Act, the court has powers to appoint a guardian for a child in need of care and protection. A child who needs care and safety is described in Section 119 of the Children’s Act. In the case of your granddaughter, Sub-section 1 (c-e) suffices, provided as follows: a child who has no parent or the parent has been imprisoned, a child whose parents or guardian find difficulty in parenting, or a child whose parent or guardian does not, or is unable or unfit to exercise proper care and guardianship. In addition, Sub-section 1 (q) affirms that a child exposed to any circumstances likely to interfere with his physical, mental and social development also needs care and protection.

Since your explanation shows a lack of objective conversation between the couple that birthed your granddaughter, it would appear that a voluntary Responsible Parental Agreement is impossible without the mediation of a children’s court.

The advice is that you file a petition in court to canvass this matter. To convince the court, you require enough evidence to demonstrate the allegations you make against your daughter’s parenting style that does not respect the child’s best interest.

You must also figure out how to present that her father, though being a good person, may not give his daughter amiable living conditions if given custody since the disputes between him and your daughter seem unending. Such a matter was canvassed in Civil Miscellaneous Application E1 of 2020, of Mariam Shighadi Mwashighadi versus James Gonda Mwashighadi. The court is on the side of your granddaughter, but since you allege it, you must prove the same.

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 [email protected]