You cannot determine child's name, court tells woman, grants father rights

When a man tried to grab his ten-year-old girl from her relatives outside the Tononoka Childrens Court April 23, 2015 in a child custody case. [File, Standard]

Imagine raising, guiding and providing for another man’s child, yet she does not carry your name.

Now imagine seeing your daughter only two weekends a month for a few hours, your name appearing on her birth certificate, while her stepfather shoulders the day-to-day responsibility of raising her.

This is the unusual but compelling arrangement a court settled on in a child custody dispute, where a man sought involvement in his daughter’s life despite his former partner being married to another man, who had willingly embraced the child as his own.

Justice Maureen Odero directed that the biological father’s name be entered on the girl’s birth certificate and granted him access to the child from 9 am to 5 pm on the first and third Saturdays of every month.

READ: Court bars women from naming children without father's consent

She held that within Kenya’s lineage system, the girl needed to identify with her biological father.

“While it is appreciated that the child’s mother is now married to another man and that her husband has readily accepted the child and is willing to provide for all her needs, this does not negate the rights of the child’s biological father to access his daughter. The father’s rights cannot be extinguished by the mother’s marriage,” Justice Odero said.

According to the judge, the child’s mother had no authority to determine whose name the girl should bear.

“In a patriarchal society such as Kenya, where a child is identified through the father’s lineage, the right to a name necessarily includes that of the father. Guided by the “best interests” principle, the minor has a right to an identity that includes the identification of her biological father in her birth certificate. This is not a decision for the appellant to make,” she observed.

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However, the Judge left the responsibility of upkeep to the stepfather, noting that by marrying the child’s mother, he had accepted the duty of caring for her. The court, therefore, found no basis to compel the biological father to provide maintenance. The parties’ names have been withheld to protect the child’s identity.

The dispute began at the magistrate’s court in 2022, when the girl’s biological father sued her mother, alleging that she and her husband were unable to care for the child.

In response, the mother told the court that the father had not been involved in the child’s life since birth, adding that she single-handedly raised the girl before marrying a man who accepted the minor as his own.

The magistrate found that the father had failed to prove the mother and stepfather were irresponsible, but ruled he should participate in key decisions, including school choice and fees, while the mother handled other needs.