Grandmother's battle with US father over custody of minor

Father argues that so long as he and the mother are alive, Wambui has no powers to live with the minor. [iStockphoto]

A minor codenamed RD playfully kicks his ball to a wall and glances with dazzling eyes while waving for a ‘hi.’

At the age of seven, his energy and time is spent on things he loves like going to school, watching kids channels, cuddling his white dog, doing homework, and playing with his friends. He is a bubbly soul.

Kenya has been his home for five years now. However, the minor is oblivious of what is happening around him. His grandmother Millicent Wambui and mother Tracy Kebatta are a worried lot.

They had just completed a court session before the High Court Judge Hillary Chemitei who suspended a children magistrate’s court order requiring Kebatta to take the boy to America.

The battle between the Kenyan mother, her grandmother and an American national Claude Allen Dary who is said to be his father has all through been on who should get custody.

The battle has been a landmark, having been an international one and which now puts Kenya and the United States at crossroads.

It has so far been heard by Justices  Eric Ogola, Aggrey Muchelule, John Onyiego, Stella Mutuku and now Chemitei.

Who between Kenya and US should have the boy?

The minor holds a dual citizenship. He also has a birth certificate of a citizen of Kenya which was registered on February 2, 2018.

His mother, Kebatta was born and raised in Kenya before moving to US in search of greener pastures.

Kebatta also holds the same citizenship status.

Wambui has been fighting the battle from the front. She is of the view that Allen cannot raise, leave alone take care of, her grandson.

She argues that he has not been a part of the minor’s life.

She asserts that he abandoned her daughter and grandson and has to date failed to provide anything for them.

“The respondent is a strange father who has had no need to come to Kenya for five years to see a child he calls his son or to spend monthly more than USD 988.  The respondent abandoned both of them without support and forced me to come to their aid but now feigns interest in the minor whom he spends very little money on,” she argues.

RD was born in 2017 in the US. He came to Kenya two years later. How and why he came has been central to the court battle.

Kebatta and Allen met sometime in 2016. They dated for close to a year and he moved to her residence in New York.

The two however never married.

Now, Allen works with the Federal Emergency Management Agency (FEMA).  According to Wambui, he can spend a long time on his job before returning home.

Wambui tells the court that he left the apartment with everything and never returned. At this time, she said, her daughter was not employed.

The grandmother asserts that she came to the rescue of her grandson and daughter at their point of need.

On the other hand, Allen claims that he has the financial muscle, mental and psychological capacity to take care of the minor.

He argues that so long as he and Kebatta are alive, Wambui has no powers to live with the minor.

“The respondent has alienated me in critical decision making on a matter pertaining to my child’s education, health, security and moral religious well-being,” argued Allen.

According to him, the minor can be taken to school in the US, can access health facilities and have a good life since he allegedly lives two blocks away from Kebatta.

In the US, Allen filed a paternity case on March 13, 2019 seeking orders to be named as the father of the minor.

Some 13 days later, Kebatta filed a child support case.  In an escalation of the court battle, the man moved back to court on April 2, 2019, this time seeking instant custody and visitation.

His story to the court was that Kebatta left with the minor in 2019 without his consent.

On May 15, 2019, Lawyers for Children was appointed to represent the minor before the court in US.

On May 31, 2019, the High Court here in Kenya issued a temporary order of custody to Wambui.  Then Covid-19 struck, which delayed the hearing in the New York State Courts.

Five months later, Justice Onyiego granted Wambui the right to take care of the minor after finding that the minor was in Kenya without his parents. He stated that the minor should live with his grandmother.

He also issued residency orders which were to hold until the issue of jurisdiction was determined.

Meanwhile, on January 13, 2020, New York Family Court Referee Stephanie Schwartz issued an oral decision that the best forum for to determine the minor’s custody was in Kenya.

A referee in the US judicial system means an official who assists the judge in limited manners, usually pertaining to fact-finding.

On April 1, 2021, Schwartz ordered that the case in the US should be held in abeyance until the cases in Kenya are settled.

She then became a judge and was moved to Kings Family Court.

The US case was moved to Justice Alma Gomez.

The contention now is that Allen did not appeal Schwartz’s finding that Kenyan courts should deal with the custody case within 30 days.

Allen, in the meantime, argued that the minor’s home state is New York.

On September 21, 2023, Justice Gomez ordered that Wambui should have temporary custody. At the same time, Allen should have unsupervised visits with the minor in Nairobi, Kenya on condition that he will give two weeks’ notice.

He was also given an opportunity to have Facetime access.

In the meantime, in a case filed before Milimani Court magistrate Festus Terer, Wambui argues that the minor cannot have a stable life in the US.