Can grandparents assume parental responsibility over grandchild?

Who between the grandmother and biological parents has the custody rights over child who is not a minor?

Dear Reader,

Professional reticence dictates that this response stays off or above social biases and stereotypic reasoning. Your concerns reflect power struggles between an extremely adorable grandmother, although the opposite could be true, and biological parents over a favourite child.

 Legally it wasn’t anticipated that grandmothers’ love or right over grandchildren will ever be placed alongside that of the biological parents, especially on a scale that measures superiority. This response is therefore wired in legal moralism, which holds that the law can legitimately be used to prohibit behaviours that conflict with society’s collective moral judgement even when those behaviours do not result in physical or psychological harm to others.

Your question, to say the least, scolds the theory of ideal parenting, as given at Article 53 (1-e) of the Kenyan Constitution.

The Constitution, operationalised through the Children’s Act defines parental responsibility at Section 23 to be all the duties, rights powers, responsibilities and authority, which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.

Such duties include: duty to maintain the child and in particular provide him or her with adequate diet, shelter, clothing, medical care including immunisation, education and guidance and duty to protect them from neglect, discrimination and abuse amongst others. In this space the law looks at parental responsibility as that occasioned by biological parameters given male and female conjugal actions or acts of cohabitation bringing forth an offspring. A parent in this sense is the one who sires the child.

As mentioned, writing modesty is necessary to stay the course of legal reasoning. Remember legal moralism implies that state can use its coercive powers to enforce society’s collective morality. It falls that biological parents’ responsibility over their child is an internationally acclaimed and protected role that is not defeated nor deflated by diverse cultural, racial, gender, economic and religious orientations.

 The two questions you seem to ask are: when do grandparents assume parental responsibility over their grandchild: and what rights, if any, do biological parents hold when such is the scenario?

To place the grandmother in this conversation we visit the preliminary pages of the Children’s Act where a parent is defined as mother, or father of a child and includes any person who is liable by law to maintain a child or is entitled to their custody. At this point the law distantly anticipates the role of another person other than the biological parents of a child. In this context the law opens up the concept of delegated powers, which require court affirmation. Further, at Section 82 (1) of the Children’s Act, it is given that a court may, on the application of one or more qualified persons make an order vesting the custody of a child in the applicant or, as the case may be, in one or more of the applicants. Such applicants may include, according to Section 82 (3), a parent, guardian and any other person who applies with the consent of a parent or guardian of a child and has had actual custody of the child for three months preceding the making of the application; or any person who, while not falling within paragraph (a), (b) or (c), can show cause, having regard to section 83, why an order should be made awarding that person custody of the child.

 In this context, we see the grandmother in three lenses: first, she could be the guardian; second, she could be the person who has consent from the parents of a child, having had custody for three months preceding application to court: and third, she could be the person demonstrating to the court why she must be given custody yet she is not parent, guardian or consent holder.

The other perspective is when the grandmother, through the wisdom of the court or surviving parent is presented as the guardian of the child. The Children’s Act describes the guardian as and to include the person who in the opinion of the court has charge or control of the child. Section 102 of the Children’s Act emphasises that a guardian is a person appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility of the so such child upon the death of the parent of the child, either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has since acquired parental responsibility according to the Children’s Act.

Even in modest legal reasoning, social logic does not invite superiority contest nor relegate biological parents’ rights over their own child against the grandmothers’. This is an inherent right, that can only be disputed under extra ordinary presence of issues that threaten the best interest of a child. It is not in the wisdom of any law to remove nor reduce the beauty of natural justice.

Eric Mukoya has over 17 years’ experience working in Kenya and abroad within the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]