By Mary Taruvinga
ZIMBABWE Fashion Week founder Priscilla Chigariro has won the custody battle for her two-year-old daughter after the High Court judge, Esther Muremba dismissed an application by her ex-husband to have the child repatriated to United State of America (USA).
The ex-husband Allen Gessen is currently residing in America.
The couple broke up in 2018 in Russia while awaiting the birth of their daughter whose custody is now at the centre of the dispute.
Following the nasty breakup, Gessen relocated with their older child to USA while Chigariro remained in Russia to regularise their new-born daughter’s birth certificate and later came back to Zimbabwe.
Gessen then approached the High Court seeking an order directing the child to be sent to USA for determination of parental rights.
He made the application in terms of the Child Abduction Act alleging that Chigariro brought their daughter to Zimbabwe without his permission.
The application has flopped.
Ruled the judge, “A person or child cannot acquire habitual residence in a country where he or she has never been physically present.
“Physical presence of some degree must be established. The child should be present in that country long enough to have acclimatised to it,” Muremba said.
The judge said Russia could not have been the child’s habitual residence at the time she was removed from there.
The child was an infant of 12 months and had not yet developed any social or cultural relationships.
“The child cannot be sent to USA. It was not the habitual residence and it cannot have jurisdiction to determine the parental rights of the parties…with the finding that Russia was not the child’s habitual residence, the application is dismissed with costs.”
The court heard Gessen and Chigariro met in 2011 and had their first child in 2013 before breaking up the following year.
He was in Russia between 2015 and 2019 and had reconciled with Chigariro in 2016 before having their second child through surrogacy who was born in November 2018.
However, before the surrogate mother had delivered Gessen and Chigariro separated again but they maintained joint custody for their children and worked together to register the young one when she was born.
Gessen’s Russian work permit expired before the registration process was completed and had to relocate to USA with their older child while Chigariro returned to Zimbabwe.
She claimed that Gessen had neglected them and ended up staying at the Zimbabwean embassy.
Chigariro later acquired a Zimbabwean birth certificate for the child and argued that she was entitled to parental rights of custody and guardianship.
She further argued that no international law issues could arise from the surrogacy issue since the egg that was used for the procedure was hers.