Kitwe High Court dismisses child custody petition against USA born Child


THE Kitwe High Court has dismissed a petition by a Zambian woman for an order of custody of her child born in California, United States of America (USA).
Silvia Chilombo of Kitwe had petitioned her former husband, John Derenza Cotton of USA, as the respondent over the custody of their eight-year-old son and sought for an order for the Attorney General to intervene under the provisions of the Matrimonial Act.
Ms Chilombo, 34, had stated that the US Federal Bureau of Investigations (FBI) had put the child under the temporary care pending extradition proceedings and that a warrant of arrest was issued against her for child abduction.
She said due to irretrievable breakdown of their marriage, she applied for legal custody of the child and, by consent, was granted joint custody which allowed her physical custody while the respondent was given conditional visitation rights.
The petitioner alleged that Mr Cotton was unable to contribute to the support of the child and that prior to the dissolution of the marriage, she was subjected to inhuman treatment, accrued numerous debts and her visa expired three years prior to filing of the divorce petition.
She said she was denied an order to allow the child to visit Zambia on two occasions in 2009 and that the child was now enrolled in school in Zambia.
Ms Chilombo said the respondent had been communicating with the child and had come to visit him on two occasions.
She stated that in 2010, the respondent obtained an expert order granting him the sole custody of the child against the initial consent joint custody granted on August 18, 2008, which order was never served on her or registered for recognition and enforcement in Zambia.
“Shockingly with deceit, the respondent on August 23, 2011, reported to the US police that the child was missing and that the petitioner had abducted the child and was not aware of the whereabouts of the minor,” read the petition in part.
Ms Chilombo said apart from the respondent visiting the child, the US Embassy in Lusaka had conducted six visits and produced reports with the latest one issued on December 6 last year.
She said for her being wanted by the FBI and the warrant being used to arrest and detain the child was an infringement on the rights of the child.
But in his ruling, Mr Justice Chali said there was no merit in the application.
Mr Justice Chali noted that the petitioner may have her own grievance over the custody orders made in USA but the solution was in that court and not in Zambia.
“The proceedings which resulted in the orders of custody of the child had been instituted in a county court of America, a Zambian court cannot, therefore, intervene or have jurisdiction in those proceedings and it is only in proceedings under the Act that the Zambian court may request the Attorney General to intervene in the proceedings,” the judge said.
Mr Justice Chali said the petitioner was seeking to remove both civil and criminal proceedings in America to Zambia, which he said, was not tenable.