My ex stopped me from seeing my child because I don’t provide

Depressed man

I can't afford child upkeep but I want to see my child 

Photo credit: Pool | Nation Media Group

What you need to know:

  • Anyone who seeks to take another to court demonstrates the desire to find a solution to an impending problem.
  • There are enough stories in public purview to confirm how separated, or divorced couples who hold disharmonised parenting preferences tend to evoke desperation, anger, frustrations and sometimes despair when dealing with child maintenance and custody. 
  • We must again arrest your fear. 

Hello Eric,
My ex and I share custody of our daughter. We were together for three years before she left. She is a successful career woman while I am a struggling businessman. I used to provide for them when she left but then, with Covid-19, business opportunities dried up. I could barely afford to feed myself, let alone my family. As such, she became hostile to me and refused to let me see our daughter. My question is: Do I have the right to demand to see her? She claims I have no rights because I have not been providing and even threatened to take me to court.

Dear Sir,
Let us first disabuse a misconception that courts are dreadful places. It is not, and the public should view and understand them as dispute handling forums where the law is applied to solve issues. Anyone who seeks to take another to court demonstrates the desire to find a solution to an impending problem. There are enough stories in public purview to confirm how separated, or divorced couples who hold disharmonised parenting preferences tend to evoke desperation, anger, frustrations and sometimes despair when dealing with child maintenance and custody. 
We must again arrest your fear. The law is not against anyone. Its construction anticipates disagreements regarding custody and maintenance of children. It prioritises children's rights caught in such circumstances through the best interest of the child principle provided for in the Constitution of Kenya at Article 53 (2). This principle demands parents, guardians, schools, children's welfare-driven state and non-state agencies, courts, other despite handling platforms, or any persons dealing with children to act in a manner that primarily protects and immensely promotes their rights and interests, needs and contentment. In short, the law seeks to link a child to a place or with a person who will afford him or her best chances of happiness manifesting as access to health, education, and shelter, amongst others, expressed in Section 23 of the Children's Act.
Where couples on their own accord are unable to agree on the custody of the child, the court, if moved, will employ section 81 (1) of the Children's Act through a custody order to assign parental rights and duties as to the best physical abode of the child known as actual custody. As to whether child support is required of either parent, the court declares legal custody. In balancing the parent's right without actual custody, the court often confers access rights to allow visitation so that the child can  find value and presence in both parents. Visitation rights can either be reasonable access which is about convenience to both parents, fixed or specified access, which means set in a known structure, supervised access, to indicate the visiting parent has to be monitored. In some circumstances, access can be denied if there is proven child neglect or abuse on the part of such a parent.
For a court to decide custody of a child, the following grounds espoused at Section 83 (1) of the Children's Act are considered: wishes of the child: wishes of the parents, guardians, foster parents or any other person who is living with the child for three months before application; cultural and religious background of the child: best interest of the child: parent-child relationship bond, parenting abilities of each individual: each parent's mental, physical and emotional health: and available support systems of each parent, besides the court may wish to determine if historically either of the parents has caused some form of insecurity to the child.
In propagating the child's best interests' principle, the court applies Article 53 (1-e) for equal parental responsibility, including supporting child development and growth, notwithstanding the couple's marital state. Despite this provision, the court sometimes applies equal but differentiated responsibility by considering the weighting of both parents' monthly earnings against their financial obligations, following Section 76 (3-f) of the Children's Act before issuing a responsive maintenance order. 
Amicable solution 
You can find an amicable solution. Article 159 (2-c) of the Constitution allows for Alternative Dispute Resolution. By law and courtesy of couple's understanding, you have a right to visit and access your daughter because you are her father. You can also agree on custody befitting your circumstances. Still, if the child is of very tender ages, and especially a girl, it is preferred that the mother is in actual possession. With this scenario, three options are before you. The first is to get the mother of your daughter and have a one-on-one talk regarding the issues raised. Second, if the first one fails, is to invite family or third parties to mediate with the assistance of County Children Officers stationed in most of the sub-counties to find a solution. Third is to file the matter of custody and maintenance in court. 
_____________________________
Mr Mukoya is a lawyer with over 17 years of experience. He's the Executive Director, Legal Resources Foundation. Legal query? E-mail [email protected]
 

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