The boy is mine

*Mary Obilisi had been waiting in the Monday morning down pour for the offices of a human rights NGO to open. *Mark, her husband of 14 years, who had infected her with the HIV virus on the second year of their marriage through marital rape had brutally assaulted her with a knife, destroyed her month’s dosage of ARV and TB drugs, kicked her out of their matrimonial home of 14 years to make room for another younger wife and took custody of *Jim, their 2 year-old son.

After almost an hour of counselling, weeping and venting, all Mary wanted was her baby back and a new life far from the man she had called her husband.

Later that day, upon mediation, the husband strode into the offices swearing never to part with the son amid insults directed at Mary. He declared he wasn’t scared of prison as he was dying anyway. He had hidden the child, whose health was at stake. A battle of laws and lives loomed.

The current Constitution of Kenya does not have the rights of children expressly spelt out or guaranteed. However, the proposed constitution of Kenya in clause 53 guarantees every child a right to free and compulsory education, nutrition, shelter, health-care among other basic rights. It specifically offers every child a right to parental care and protection with equal responsibility on the mother and father to provide for the child regardless of whether they are married to each other or not. The Children’s Act of 2001 is the comprehensive law in Kenya that deals with matters relating to the welfare and rights of children.

The Children’s Act, defines a child as any human being under the age of 18 years, and a child of tender years as one under the age of ten years. The Act created the Children’s Court which is the primary court that deals with all matters relating to Children in Kenya. Appeals of these children matters lie in the high court. An aggrieved party can lodge a second appeal in the Court of Appeal whose decision is final. Any person who, having parental responsibility, custody, charge or care of any child and who willfully assaults, ill-treats, abandons, or exposes a child to harm, neglects the child or contributes to the child becoming in need of care and protection, commits an offence and is likely to be fined an amount not exceeding KES200,000, be imprisoned for a term not exceeding five years, or both.

Custody is the parental duties and responsibilities that come with the possession of a child- often given by a Court. Custody can be awarded to: a parent of a child, a guardian, any other person who applies for custody of the child but is legally living with the child for three months before making the application and has the permission of the parent or guardian, or any other person who can show cause, having regard to Section 83 of the Act, why an order should be made awarding him/her custody of the child. It is such custody that Mary was pleading for.

However, before making a custody order, a court considers the conduct and wishes of the parent or guardian of the child, the wishes of the relatives of the child, the wishes of any parent, or any person who has had actual custody of the child and under whom the child has made his home in the last three years before the application. It also considers the wishes of the child, whether the child has suffered any harm or is likely to suffer any harm if the order is not made, the customs of the community to which the child belongs, the religious beliefs of the child, and-the fundamental-the best interest of the child.

The Children Act of 2001 states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall again be a primary consideration.

According to the Act, the child has the right to express his opinion, which shall be taken into account, depending on the child’s age and the degree of maturity.

A person who wants custody is required to go to the Children Court to place his request. The request can be for one to have care and control, which means actual possession of a child-whether or not that possession is shared with one or more persons. Usually, the standard practice is that the court grants custody to the mother then the father is granted access rights because he has parental rights. For children above the age of ten years, the court allows them to express their wish on which parent they wish to live with. As much as the court may not be bound to the wishes of the child, the best interest of the child usually makes the court to lean toward the wishes of the child above ten years of age.

For children of tender age (below ten years), the court always grants custody to the mother; citing that mothers are generally best suited to exercise care and control of such children.

However, where special and peculiar circumstances exist, custody will not be granted to the mother. Such circumstance can be: the mother is unsettled, she has taken a new husband, her house is in a despicable state unsuitable for habitation by children, she is immoral, has drunken habits, keeps bad company among others.

Child custody must never be confused with child maintenance. Child maintenance entails the parental responsibilities over a child, which include the duty to maintain the child and in particular to provide him with adequate diet, shelter, clothing, medical care including immunization, and education and guidance which can be extended by a court even when a child is past 18 years of age. Maintenance has been a subject legal battle for many parents especially women who want irresponsible fathers to contribute in raising up their child.

And If you have been wondering how it went with Mary; she asked the court to make custodial orders for Jim through the NGO lawyers.

She pleaded for the child custody not to be shared with Mark. While a court is dealing with the question of custody of a child has power to give directions regarding the child’s maintenance (for adequate diet, shelter, clothing, and medical care-including immunization, and education and guidance) and housing even where those orders have not been prayed for, as mentioned,

Mary wanted none of those fringe benefits. Having filed the matter under certificate of urgency, her lawyers were heard ex parte (without the other side) in chambers within the second day of filing. The magistrate issued interim conservatory orders giving custody to the mother pending full hearing and determination of the matter. When Mark was served with court orders, he tore them and tried picking a fight with the court process server. When the magistrate’s gavel fell, Mark who had never showed up for hearing was not only denied custody, he was ordered to be contributing KES 40,000 towards the maintenance of the child until he was 18 years of age. Mary wept afresh, tears that seemed to say she was surprised and thankful for the ruling. With Jim in her arms, she walked out of court-admittedly to a new life-away from Jim’s dad and from the KES40,000 monthly contribution which she wanted none of – to a fresh beginning with Jim.

‘Not real name

The writer is an Associate with the Kenya Human Rights Commission

END: BL 33 / 36-37

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