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LEGAL AID: My ex wants to move our child to USA

Wednesday October 9 2019

I am writing to you with regards to my ex-girlfriend who wants to take our five-year-old daughter to USA where she currently resides. PHOTO| FILE| NATION MEDIA GROUP

I am writing to you with regards to my ex-girlfriend who wants to take our five-year-old daughter to USA where she currently resides. PHOTO| FILE| NATION MEDIA GROUP 

ERIC MUKOYA
By ERIC MUKOYA
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I am writing to you with regards to my ex-girlfriend who wants to take our five-year-old daughter to USA where she currently resides.

I have been paying maintenance since her birth until sometime in July 2018 when she insisted that I send money to her mum (who will take care of the child) and not her because she was relocating to Nakuru from Nairobi without the child. I refused and emphasised that I will send it to her and she can send it to her mum.

Note that she didn't want to give me any contacts of her mum. Since my refusal, she has blocked me and contacted me a month ago from USA mentioning she's planning on taking the child abroad.

She has also refused to share with me any of the child's documents. I don’t know where they live because I have been working out of the country. Please help me.

 

Dear Sir,

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The tone of your mail depicts you as a man in constant search of truce about your daughter’s comfort.  Besides, you indicate amiable communication between you and the mother, though your daughter’s whereabouts remain unknown to you since July 2018. Thank you for sharing this unfortunate scenario where your ex-girlfriend seems determined to relocate the child to USA.

You must appreciate as I do that many couples face similar dilemmas only with different dynamics. Therefore, this discussion acknowledges your concerns as valid, yet an opportunity to speak for parents.

A number of scenarios emerge from your question. First, both of you seem to reside away from the child, leaving the girl in the care of the grandmother.

Two, the kind of parenting demonstrated gives rise to the concept of parental duties and rights. Three, the rights of a child especially a five-year-old manifesting as welfare and custody, in particular migration to foreign country.

For starters, both of you should be aware of joint and equal right as well as responsibility to parent the girl.

As parents, you have a legal duty to provide adequate diet, shelter, clothing, medical care, education and guidance besides the onus to protect the child from neglect, discrimination and abuse; duties which you and your ex-girlfriend have been sharing despite the nature of your relationship.

This is provided for in the Constitution of Kenya. None of you has superior rights nor inferior responsibility towards the wellbeing of the girl. She remains a daughter to both of you.

Having said that, I wish that both of you know that decisions regarding the welfare and rights of children are always motivated by the principle of “best interests of the child.” Without disregarding the impact of your differences, the question to ask is what is the best interest of your daughter, with you, with her or with the grandmother?

The situation demands that an agreement is arrived at between the two of you, where the child should reside. While the law is clear about young female children being in the custody of their mother, unless proved inappropriate, your voice and consent on the residency of the girl especially moving out of Kenya is mandatory. However, the court could waive off this right, if in the past you have demonstrated disinterest in the care of the girl. 

Your situation has the following options. First, negotiate as parents bound by interests, needs and rights of your daughter to find a middle ground that takes care of the concerns of both parties.

The agreement arrived at, for the purposes of execution and legal recognition, should be registered at the High Court. Should this approach fail, both of you are at liberty to invoke Article 159 2-C of the Constitution which provides for alternative dispute resolution.

This opens you guys to arbitration, mediation, reconciliation and or traditional dispute resolution mechanisms to find consensus. In the event that this doesn’t settle the matter, you will be free to move the court for adjudication. But remember the courts are extremely reluctant to canvass matters that can be resolved by other means. This case is. 

Nevertheless, in court you may seek the following: an injunction to prevent your ex-girlfriend from relocating with your daughter.

Second, file an application for custody if you so feel this serves the best interest of your daughter. Lastly, file an application to have the child brought to court and be given interim custody, care and control of her pending the full hearing and determination of your application for custody.

Do note, however, that in the case of young female children, custody is often granted to their mother unless special circumstances exist. Courts always consider the welfare of the child before deciding.

Therefore, if the court is convinced that you are better suited to hold custody of the child then their decision will be reflective of this.

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

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