Can my ex-wife dictate how often I see my son?

I recently separated with my wife, she left with our child. I love my son so much and can't bare staying away from him. Are there provisions in law that allow me to see my baby whenever I want?

Dear reader,

Children are among the most vulnerable groups whose safety and well-being are likely threatened by the degree and prevalence of certain levels of helplessness inherent in them. Most children tend to suffer from diverse violations and abuse owing to circumstances whose making and outcome are not their fault. Even where such fault is recognised, it is sacrosanct of the law to facilitate responsible people and institutions to ensure they are out of harm's way.

Essentially, the law empowers society to keep children safe and provide them with a realisable environment to exercise their right to be a child. Article 53 (2) of the Constitution of Kenya provides that a child's best interest is paramount in every matter concerning the child.

It is understandable for adults to choose marriage when ready, and their right to opt-out at the appropriate time. It is also understandable for adults to conceive and bear children, notwithstanding their circumstances. These are choices that married and unmarried couples grapple with every day. While Article 45 of the Constitution of Kenya anticipates and heralds the family to be the most ideal, natural, and fundamental unit of society and the necessary basis of social order, it is not always true that children are gotten out of love. Moreover, the concept of family is no longer the traditional father, mother, and children circle. There are many single households in Kenya today, as is worldwide.

If you are separated as you claim in this text, the law not only anticipated this scenario, it has gone further and provided a remedy. The remedy, however, is contextualised within the child's best interest, provided for in Section 8, Clause 1 paragraphs (a) and (b), read together with the First schedule's details on what accounts for the child's best interest principle. The Children's Act of 2022 is quite comprehensive and has anticipated two possible scenarios on matters to do with custody. In the first scenario, the couple will agree on how to deal with their children despite the separated union.

Based on Section 32 in Part III of the Children's Act, and in pursuance to Article 53 Clause 1 paragraph (e), it is the right of every child to access parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether married to each other nor not. Section 33, clause (1) of this Act foresaw your circumstances and opens up an opportunity for you and the child's mother to develop a parental responsibility agreement that highlights shared responsibilities concerning the welfare and rights of this child. Clause (2) paragraphs (a) to (h) make a raft of things that can be contained in a parental responsibility agreement, but the key to responding to your concern is how the child spends time with each parent; how the parents will make joint decisions on matters relating to their respective parenting responsibilities; and duty of care the two owe each other. For instance, the parent with actual custody (who has possession of the child) owes a duty of care to the other by mentioning a change of address and volunteering information on access.

The second scenario is when the couple cannot agree, which often becomes a child custody matter in court. Part IX of the Children's Act provides the court's options in ensuring that a child's right to be a child of both parents is not injured or reduced in any way, where parents no longer find love, time, space, and sometimes appreciation for each other. The aggrieved parent may choose to move the court to seek custody orders. Such an order gives a parent the right to make critical decisions affecting the child's well-being.

Before a competent court grants legal custody, it considers several factors, including the parents' wishes, the child's opinion depending on their age, a child's medical condition, if any, the sex of the child, income security of the parents, and the existing relationship between the parents and the child. Should the court give the mother legal custody, it also provides for the right of the father to access their child, and vice versa. Visiting rights are granted based on the prayers made by the parent with no legal custody. In certain circumstances, the court may order joint custody, in which each parent enjoys the child's physical presence in their private space and attendant responsibilities without interference or policing from the other. It is usually an arrangement that fits or fixes parents into the child's unique circumstances. Let us remember the Children's Act, in pursuance to Constitutional tenets, prevents children from being casualties when their parents are quarrelling. These laws allow you and the mother of your child to create an amiable environment in which your right to access your daughter is structured, away from thinking of any time you want to. Every child has a right to equal parental care, notwithstanding the stresses of their parents.