My husband has refused to grant me access to my sons…

Dear Vivian,

I have recently returned to Kenya from Saudi Arabia, where I worked as a housekeeper for the last six years. I have two sons who have stayed with their father while I was away. I, however, separated from my husband while I was still abroad, and due to distance, we could not agree on the custody of our children. Our twin sons are now nine years old. I wish to take them back; however, my husband has refused to grant me access. What should I do?

Scholastica Abuya,
Kitale

Dear Scholastica,

Custody in Kenya has been emotive and weighty, often arising from a relationship or marriage that has gone sour. Due to the sensitivity to children’s matters, parties are encouraged to seek redress through mediation first. The mediator often leads the parties to reach a parental responsibility agreement. This amicable agreement allows both of them to participate in bringing up their children.

Should you come up with this agreement, it shall contain a section that outlines the role of every person. It will further describe the visitation structure and arrangements of the parents according to the schedule of the children’s activities, such as their time during the academic year and school holidays. I, therefore, recommend you have it registered and adopted in court as an order.

The law defines custody as either legal or actual. Legal custody entails the rights and duties that parents possess over the child, whereas actual custody is the physical possession of the child. This section will contain specific details of who has actual custody of the child.
If an out-of-court settlement fails, you can file a court case – usually at the Children’s Court. The matter will go to hearings, and a report by the children’s officer will be relied on to determine custody.

Courts faced with the custody question are mindful of the constitutional and statutory imperative that the best interests of a child are paramount. For years, children under the age of 10 would automatically be given to their mother unless she was proven to be unfit. However, in a landmark case at the High Court in Nakuru last year, it was decided that fathers can also get custody of minors. The judge affirmed that it was wrong to assume that men are naturally meant to be the breadwinners and women the caregivers.

The decision also held that yanking the children from the life and person they are accustomed to would lead to psychological trauma on their part. Therefore, your duration away from the children will be factored in. Nevertheless, both parents have the right to exercise parental care and responsibility over their children, including having custody.

Vivian

The writer is an Advocate of the High Court of Kenya and an award-winning civil society lawyer. [email protected]