Why grandmother fighting father for boy’s custody

A grandmother has taken her fight for custody of a boy she has cared for for four years to the High Court, in a case being litigated in Kenya and the US.

At the centre of the legal battle is a four-and-a-half-year-old boy who has dual Kenyan and US citizenship.

MWM went to the High Court this week after a Nairobi magistrate ordered her to hand the boy over to the authorities to be taken to the US, where the courts will decide who has custody of him.

The woman has alleged that the minor’s father abandoned her (his then spouse and the child) in 2019. She further said that the man has consistently lied about his means and financial support and has not demonstrated that he is able to support the minor.

“The learned magistrate ignored or overlooked the fact that the minor in the suit is a child in need of care and that his parents, including the respondent (father), are unable to provide him with proper care and attention within the meaning of Section 144(h) of the Children’s Act because they are intensely involved in litigation for the custody and maintenance of the minor,” MWM said in the appeal.

High Court judge Hillary Chemitei certified the case as urgent and ordered the matter to be heard on 26 April. In a ruling earlier this month, Senior Resident Magistrate Festus Terer said both parents were alive and the maternal grandmother did not have the capacity to be the minor’s guardian.

The court noted that before moving to Kenya, the boy’s mother had filed a child support case in a New York court. Mr Terer said the US courts were better placed to determine who should have custody of the minor because the boy had both Kenyan and US citizenship.

“All I can say is that the minor needs to be returned to the US quickly as the parties are litigating the custody issue there,” Mr Terer said.

But in the appeal, the grandmother argued that an American citizen who leaves his child in a New York apartment without financial support should not be granted custody of the minor.

She said that what the man called home was his mother’s house because he could not have his own house because he did not have the means to buy one.

She fears that without an agreement on how he will care for the child, the minor may be forced to move into a foster home.

“That the judge ignored the implications for the minor’s best interests of the fact that the father decided not to marry the minor’s mother a year after the boy’s birth and later abandoned them,” she said.

For his part, the man said he had been persistently caring for the child as much as the grandmother would allow.

He said he was ordered by a New York court in 2019 to provide about Sh129,000 every month for the child’s upkeep.

But the grandmother said that since February 2019, the father has never come up with a plan or even discussed means of raising the minor, 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 then abandoned the idea. She was reportedly working when they met and the boyfriend allegedly asked her to quit her job so she could look after the child.

However, he allegedly left her in February 2019, forcing the mother to take him to Kenya where she has been caring for the minor.

He allegedly moved out of the apartment he had rented for them without giving them any provisions, but the mother had no job.

The child’s mother decided to bring the minor to Kenya as she was unemployed while she returned to New York to look for work.

The grandmother says she had to take care of the minor until his mother’s career stabilised.

“As explained above, on 23 February 2019, the respondent packed his belongings at home and left the minor and the mother without any means of livelihood, having reneged on the commitment he made shortly before the minor’s birth,” MWM said.

It said the man lied that the child was taken without his consent and knowledge, and also claimed that he wanted to be part of his son’s life and be a responsible person.

Testifying before Mr Terer, the child’s mother said that she was currently undergoing training in the US for the purpose of onboarding.

According to her, the training involves long working hours and she may not be able to take care of the child. She also said that she would be forced to get a bigger house if she had to take the child with her to the USA.

In response, the father said that he has a permanent residence in Brooklyn, where he has lived for 30 years. His mother and siblings live in the same area.

When the mother and the minor moved to Kenya, CAD said he had been sending them money for their upkeep.

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