A woman has lost custody of her three children to her mother-in-law in a landmark case.
The children, aged between six and 12, have lived with their grandmother for the last three years following the death of their father. The woman had fled from her matrimonial home.
In a new twist on children custody, the court ruled that the minors should stay with their grandmother, but their mother will get unrestricted visitation. The two will jointly provide for the needs of the children.
“Under normal circumstances, a child should be allowed to stay with surviving biological parent. However, one has to consider whether the stay will affect the children’s welfare negatively,” ruled Justice Rachel Ngetich.
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The case pitted a woman named JGN and her mother-in-law identified as NWK and escalated from the magistrate’s court to the High Court.
In the case, NWK narrated to the court that the minors were born by JGN and her late son GNW.
She stated that her daughter-in-law married her son sometime in 2003 and subsequently ran way in 2011, leaving the minors.
Her son died on June 24, 2016, and left her to take care of her grandchildren.
In reply, JGN argued that her mother-in-law had no right to claim custody of her children while she was still alive.
She was of the view that the general principle on children custody is that they ought to live with the surviving biological parent and not the next of kin.
She testified that she left her matrimonial property solely because of her mother-in-law.
The court ordered two of the children be brought to court for a hearing. They were heard in camera.
The minors told the court that their mother rarely visited them and that she was also a drunkard.
The minors also told the court that their grandmother was taking care of them well.
According to the two, they were comfortable living with their grandmother.
“The two children interviewed confirmed that since their mother left them in 2011, they have lived with their grandmother,” noted the judge.
“They accused their mother of abandoning them and being a drunkard. Plaintiff’s (mother-in-law) evidence was buttressed by evidence of the two children who preferred to stay with her,” said Justice Ngetich.
Justice Ngetich also slapped the woman with costs of the case which she will pay to her mother-in-law.
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