This archive report was first published on 25 September 2019.
Published on September 25, 2019, by Eric Mukoya, Executive Director of the Legal Resources Foundation Trust.
When considering marriage, it's essential to address potential complexities, especially when children are involved. A reader recently asked for advice on marrying his girlfriend, who has two children from a previous relationship, despite not being the biological father.
The Births and Deaths Registration Act requires the name of the biological father to be included in the birth certificate, which helps establish paternity, provides medical history, and facilitates estate distribution. Kenyan courts have consistently upheld this principle in various cases.
Assuming the children are below 18 and require parental care, the biological father's potential claim for custody or parenting rights becomes a concern. In such cases, the court's primary consideration is the best interest of the child, as enshrined in the Constitution of Kenya and the Children's Act of 2001.
Historical patterns of responsibility between the biological parents will be examined, and if the father has maintained the children, the court may grant him continued parenting privileges. However, if a claim for custody arises, the court becomes the immediate protector of the child and may seek to determine the best arrangement for the child's well-being.
If the children are above 18, they can make personal decisions based on their individual preferences. If the couple's marriage is recognized in law and they opt for parental responsibility of the two kids, they must demonstrate voluntary assumption of parental responsibility and consent to joint care.
For an adoption order to recognize the two kids as their own, the biological father must waive his parental responsibilities and rights within a child adoption process. This would require producing relevant documents as proof.
Eric Mukoya is the Executive Director of the Legal Resources Foundation Trust. If you have a legal problem, please email your queries to him.
