Court to rule on request to bar minor from being taken to USA in custody battle


Earlier this month, a Nairobi court ordered the minor's swift return to the US, where his parents are fighting for his custody.

Photo credit: File | Nation Media Group

The High Court will decide Tuesday morning whether to temporarily halt the relocation of a minor to New York City, US, in a battle pitting the boy's Kenyan grandmother against his American father.

Judge Hillary Chemitei will decide whether the four-year-old minor can remain in Kenya pending the outcome of an appeal by his grandmother, who says it is in the child's best interests to remain in Nairobi.

Earlier this month, a Nairobi court ordered the minor's swift return to the US, where his parents are fighting for his custody.

Senior Resident Magistrate Festus Terer ruled that the boy's parents were alive and that his maternal grandmother, identified as MWM, did not have the capacity to be his guardian.

The court then ordered that the boy be handed over to the authorities to be taken to the US, a process to be facilitated by the Directorate of Children's Services and Inspector General of Police Japet Koome.

But MWM said in the application that the magistrate misunderstood the nature of its application and ignored the best interests of the minor.

She said the father - CAD - abandoned the child and his mother in New York City in 2019 without food or shelter, forcing her to take the child in and care for him since.

"The learned magistrate overlooked the fact that the minor in the suit is a child in need of care and protection within the meaning of Section 144 of the Children's Act and further that the said minor was abandoned by the respondent, his guardian, within the meaning of Section 144 (b) of the same Act and left him in New York City on February 23, 2019 to be taken care of by his mother who was unemployed," she said in an affidavit.

She said she stepped in and assumed parental responsibility for the minor after he abdicated his responsibility and also because her daughter had no means to support them as she was pursuing her Master's degree.

The man said he was a responsible citizen and worked for a government agency in the US. He says he has been caring for the child to the extent that the grandmother has allowed him to, although he has been denied access to the minor.

"As it stands, my child has now been living with the respondent (grandmother) for almost four years and has been denied the much needed parental care, affection and love, while both I and my child's mother are alive and most capable and best placed to look after our child's welfare and needs," he said in his appeal.

MWM said in the appeal that an American citizen who abandons his child in a New York apartment without financial support should not be granted custody of the minor.

She added that since February 2019, the father has never made or even discussed a plan for the minor's upbringing, but only feels strongly as a father that the boy should live with him in the US.

According to evidence submitted to the court, the parents met occasionally in 2016 and lived together for some time before the boy was born. The minor's mother moved to the US in 1997 for further studies and has been living there ever since.

The boy was born in New York in 2017. The parents had planned to marry, but subsequently abandoned the idea.