My ex-wife moved with our child

Hello Wakili,

 My ex-wife moved with my daughter to a different town without letting me know. Now I am lost because I have to make plans on how I will visit them. What can I do? We have joint custody of the child though she lives with the mum.

Dear Distressed Father,

Long-distance ties are common in these times of scarce and scattered employment, demand for career development, and desire to pursue deeper academic pathways. Either parent, with or without custody of a child as provided by the Kenya’s Children’s Act, has a right and may be motivated to change residence for several reasons, which could include calls for new employment, promotion, or transfer, appropriate climate for them and child or move location to accommodate a child’s change of school and others. While consultation is the preferred guiding principle legally and socially where children’s welfare is involved, some motivations override the importance of paired thinking, and so is agreement. Section 81 (1) of the Children’s Act, read following Article 53 (2) of the Constitution, obligates parents always to factor the best interest of the child in many of their decisions. I am sure this is the gist of the conversation.

Co-parenting is rarely easy, especially after separation or divorce. The law is invited to aid parents in disregarding their feud and disregard their parental responsibility as created in Article 53 (1-e) of the Constitution. Custody of children and the management of the attendant process is provided for in Children’s Act at Section 81(1), where the types of custody are defined as follows: Actual custody being the ordinary possession of a child, whether or not that possession is shared with another person; legal custody refers to parental rights and responsibilities that are conferred on a specific person(s) by a custody order obtained through a court process: joint custody, being a combination where both parents share the responsibilities including custody of the child: and lastly, sole custody, where one parent is given both legal and actual custody owing incapacity of the other to raise a child effectively.

Custody principles

There are general custody principles for you to know. If the child in question is of tender age, irrespective of sex, it is preferred into the mother’s care. This can be altered if reliable evidence is availed to discredit the mother’s capacity to act as so, like living with a new husband, staying in appalling housing and being of doubtful character considered harmful to the interests and rights of the child.

 The court pronounced itself on this matter in JKW vs MAA (2015), holding that a child of and below 10 years is tender. Custody, should in principle, be given to the mother unless exceptional reasons exist to disqualify her. From your text, it is impossible to know whether this is likely the case since the child’s age is unknown, although the type of custody is clear.

Despite the afore-painted scenarios, parental duties never cease as demanded by Article 53 (1-e). Even then, following court decisions, the law anticipates the differentiated roles between father and mother in recognition of the distinct biological and gender roles.

As explained in ZWN v CMK (2018), “any person who has parental responsibility for a child at any time shall not cease to have that responsibility”, which is contextualised as parental guidance, provision of adequate diet, shelter, clothing, medical care and education as given at Section 23 of the Children’s Act. In addition to your duties as a father, it is expected that the mother’s relocation will not dissuade you from supporting the child or visit.

Were you to challenge this matter in court without ignoring the opinion expressed in paragraph one of this response, the court will likely employ the wisdom established in Payne vs Payne (2001) case. The court observed: “...In summary, a review of the decisions of this court over the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: The welfare of the child is the paramount consideration, and refusing the primary caregiver reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore, her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.”

With the information shared, the legal odds seem to favour the mother of your child. You may not have sufficient grounds to challenge the relocation since justification could include the best interest of the child at play. Just as it was stated in the matter of Kerr LJ in Tyler v Tyler [1989]. “I also accept that this line of authority shows that where the custodial parent has a genuine and reasonable desire to emigrate then, the Court should hesitate long before refusing permission to take the children.”

In conclusion, both of you will have to develop new terms within the joint custody arrangement and deposit the same with the court for execution. We are not privy to your living circumstances and cannot gauge the depth at which the best interest of the child will be safeguarded.

Mr Mukoya is a lawyer with over 17 years of experience. He’s the Executive Director of the Legal Resources Foundation. Legal query?

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