Does my ex-wife have the right to change our child’s name?
My wife and I had a customary marriage that lasted two years. We were blessed with one child. After the marriage ended, my ex-wife changed the name of our child and removed my name from the birth certificate. Additionally, she has kept me from seeing the child. I feel lost, hurt and confused. I need your help on the way forward.
This conversation begins with some sobering statistics. The negative impact of missing fathers has been mentioned and studied severally. The absence of a father or father figure is a risk factor for positive growth and development milestones of children, but not necessarily absolute.
Findings of numerous studies indicate that 71% of school dropouts are from fatherless homes, while 90% of runaway children have an absent father. Such statistics do qualify the significance of the best interest of the child principle that is entrenched in most international, regional and municipal legal instruments, in particular Article 53 (2) of the Kenyan Constitution.
While it may not be the singular right for your former wife to change the name of the child, there is no piece of law that illegitimatises her action. In the spirit and command of Article 53 (1, a-e) provisions, it is clearly followed in Section 7 (1) of the Children’s Act (2022), that a child shall have a right to a name and nationality, and as far as possible the right to know and be cared for by their parents.
The care in the context of this provision, assumably, may include the consultation between parents on how best the child is to be identified.
Without reducing the magnitude of the issue raised regarding the change of the child’s name, and consequent obliteration of your particulars from the birth certificate, it is important to note the likely successful but dishonest process that actualised the new birth certificate of the child.
Since it is not known how old your child is, and at what age the name change was done, it could also be legally immature to offer any further direction at this point.
From the tone in the text, it seems you and the mother of your child are on talking terms. If not, you likely meet or are aware of each other’s whereabouts.
Should that be the case, then there is an opportunity for both of you to initiate a process of developing a responsive parental responsibility agreement, that underscores the circumstances of both parents but highly emphasises and prioritises the best interest of this child.
Such a process can be a direct negotiation between the two of you, at least with some credible witnesses, or through a mediator to guide the conversation. In the discussions preceding the agreement, several issues can be sought.
These may include; agreeing on the mechanisms of reclaiming the child’s identity, irrespective of spousal differences; agreeing on the identification of best approaches to share parental responsibility, with references to Article 53 (1-e) of the Constitution, which premises that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not: agreeing to the custody of the child, specifically stating who physically remains in possession of it, and in the same vein, who visits and how.
Further, there should be an agreement on how medical and health well-being can be taken care of, besides education. Let it be recalled that Section 6 (1) of the Children’s Act categorically states that every child has the right to life, survival, well-being, protection and development.
Should the aforementioned process fail to arrive at an agreeable parenting position, then you are at liberty to petition the matter in a children’s court through an advocate of the High Court of Kenya, which is versed on children's rights. In your pleadings, following this path you can make several claims, for which evidence must be provided, and prayers sought against.
You will have to prove that an earlier authentic birth certificate was in existence or identification documents that have your name endorsed on them. You will have to prove that your efforts to see the child have come to naught.
You will have to prove the deliberate action by the mother of the child to deny you the right to visit and be with your child, in a manner in which helps the child to grow rationally. In the two scenarios herein described, one truth stands and must be internalised by both parents.
Not affording your child access to either of you, is essentially robbing it of something that is rightfully theirs-a relationship with their other parent. Remember, in 2016 Justice Mumbi Ngugi declared that every child has a right to a father, in her judgement in a matter that found Section 12 of the Registration of Birth and Deaths Act to be unconstitutional.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
