In Summary
  • The principle “in the best interest of the child” is unlimited in its application and demands of the two parents to work together voluntarily for quality parenting.
  • Irrespective of differences between mother and father, whether in a marriage or not, a child must not suffer in any way due to their misunderstanding.
  • Do you have a legal problem you would like addressed by a lawyer? Please email your queries to lifeandstyle@ke.nationmedia.com

Hello,

I got a son with her and we lived together until the child was two years old. We then differed on certain issues, separated and she moved out to stay on her own. She blocked me on all communication avenues.

I have been trying to reach her with no success. She doesn't even want me to support the child. She doesn't grant me access to the child even though he enjoyed and liked my company. I love him and I miss him so much but it is like there is nothing I can do because I don't know her whereabouts.

Please help me.

Regards

Stephen

Dear Stephen,

You are in a situation where you are trying to be a good and responsible father in an environment where communication seems difficult. Your story is touching and indeed speaks for the many men unable to access their own children on account of spousal difference. Going by your note, you have made every effort to be part of the boy’s upbringing. Notwithstanding the challenge you face and noting the likely emotional fatigue originating from your efforts, the law is on the side of the child.

The principle “in the best interest of the child” is unlimited in its application and demands of the two parents to work together voluntarily for quality parenting. Irrespective of differences between mother and father whether in a marriage or not, a child must not suffer in any way due their misunderstanding. Since paternity is not in question, you reserve the right to access and take care of your son. The Children’s Act in pursuance to Article 53 of the Constitution of Kenya directs as much. The right is self- activating, exercised equally, and does not predispose any of the parents to inferior time or responsibility. In this case the child is king to the father and mother in equal measure. The child must be served.

LEGAL AND NON-LEGAL ACTIONS YOU CAN TAKE

In seeking to serve this child, a number of actions are anticipated that are both legal and non-legal: for non-legal, you first make attempts to trace the mother of your son or find means by which formal communication can be re-established: two, visit the Department of Children Services for government intervention as matter of priority, if this can help you commence negotiations with her: three, on the assumption that you find her, sit down as parents and structure a plan where both of you take care of the child.

Should this approach fail, the legal actions then kick in: you file a suit seeking to have access to your child for relevant support. In this petition, you share with the sitting judicial officer (Magistrate) your efforts and especially the discouraging outcome. You must provide evidence demonstrating the levels of your purported effort to support your son.

The court, upon listening to your submissions, including gauging the relationship that previously existed (since you haven’t said how many years since parting) between you and the boy, will then be guided by the principle of best interest of the child and may grant you favourable orders.

Such court order will compel the mother to give you access as a co-parent. However, you may need to know that the court, depending on the age of child, may leave physical custody with the mother.

Nonetheless, the court may ask both of you to come up with a written agreement factoring in arrangements on how to best cater for your son’s upkeep. Where you are unable to reach a consensus, the court then interrogates the surrounding circumstances and makes a determination over the issue.

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Do you have a legal problem you would like addressed by a lawyer? Please email your queries to lifeandstyle@ke.nationmedia.com