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LEGAL AID: I pay child support but she won’t let me see my son

Thursday March 12 2020

His mother only allows him to talk to me on phone but won't let me see him. PHOTO | FILE | NATION MEDIA GROUP

His mother only allows him to talk to me on phone but won't let me see him. PHOTO | FILE | NATION MEDIA GROUP 

ERIC MUKOYA
By ERIC MUKOYA
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Hi,

I have a six-year-old son but don't get along with his mother. I was unable to support him when I lost my job some time back, but I have since got a stable income and occasionally pay his bills.

His mother only allows him to talk to me on phone but won't let me see him.

Yet she expects me to continue sending money for the care of the boy. I'm willing and able to pay for any needs my son has but is there a way through in which I can get my rights to spend time with my kid as we stay in the same neighbourhood? 

Dear Reader,

Bringing up children is ideal where both parents are present and on good terms. This is not often the case because many couples face challenges, including differences that hurt effective parenting.

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Parenting should always be a compromise of principles shared between parents, alongside society for the best interest of the child. Feuding parents, should never reduce a child’s ability to enjoy their childhood, as is the case of your son.

Before inviting the importance of law and policies and besides attending to the four fundamental legal matters you have raised, it is imperative to mention that children’s vulnerability and reliance on adults for their welfare and rights is the primary motivation for the formation of any law addressing their issues.

Therefore, flouting this principle is in itself an injustice. First is the onus to parent a child. The Constitution at Article 53 (1-e) commands and commits parents to joint child-rearing responsibility with or without a marriage. The second issue which is a component of the first, involves the right to spend quality time with one’s child.

The Constitution is clear that no parent is superior, irrespective of the financial, political or social muscles at play between father and mother.

Just as the expectation to offer financial support stands prominent so is the right to spend quality time with your son. It is expected as parents of this boy to jointly develop a visit or meeting programme that allows you to spend time with him.

Third, is child support in broken relationships. The spirit in Article 53 (1-e) extends its force to you supporting your son.

While in application child support is court-ordered payment that goes towards the upkeep of a child, it must not always emanate from litigation.

Your concern is that despite providing such support voluntarily, you have been barred to see and spend time with him. This is a valid concern. The remedy has two approaches.

The most preferred is negotiation between you and the mother or your representatives through the help of a children officer in your area to find consensus on the how.

The second, upon failure of the first approach, is to file a suit in the children’s court seeking judicial intervention that allows you time with your son. 

The fourth issue regards custody of the child, which in a layman’s language means actual place of abode and the parent who physically resides with the child among the two. It doesn’t read as though you have a problem with this matter.

However, were it that it is an issue where direct negotiation between you and the mother of your son have failed, then court would have become the arbiter.

For your information, if court is moved to determine custody, then minors of tender age especially girls are often kept under the care of their mothers, not unless there is evidence discrediting this position in particular likelihood of child exposure to harm.

Further, the court among other reflections, may consider what Section 83 (1) of the Children’s Act provides, which is; wishes of the child, wishes of the parents, guardians, foster parents or any other person who have custody of the child; cultural and religious background of the child, best interest of the child, parent-child relationship bond, parenting abilities of each individual, each parent mental, physical and emotional health and available support systems of each parent.

In conclusion, let it be known that law is available to those unable to agree on the parenting mechanisms of their own children.

Similarly, the law is forceful and was intended so for those who disregard child rearing responsibilities.

***

Eric currently works for the non-profit human rights organisation Legal Resources Foundation Trust as the Executive Director. He has a passion for improving the legal literacy of the wider society and access to justice through various public education platforms.

Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]

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