I’ve broken up with my children’s stepdad; can I sue him for their upkeep?
A mother and her daughter.
What you need to know:
- Long-term relationship between children and their stepfathers creates a bond that necessitates stepfathers to have parental responsibility.
- Courts have held that it would be morally wrong for a stepfather who has had a parent-like relationship with a child to disclaim all responsibility and duty to maintain the child when their relationship with the child's parent ends.
Dear Vivian,
I am a single mother of two. I have also been married for six years but not to the children’s father. The children have become fond of my husband. In fact, they have known him as their “second dad” since he assumed all parental responsibilities. We have now broken up and he has cut all financial ties. Can I sue him for parental responsibility?
Anne Chelimo, Nakuru
Dear Chelimo,
The legal framework regarding parental responsibility in Kenya over children is defined in two key contexts: biological fathers and mothers' spouses.
According to Article 53(e) of the Constitution, both father and mother have equal parental responsibility over children, whether they are married or not. This responsibility is automatic and extends to all children born to them, regardless of their marital status at the time of birth.
The law prohibits biological fathers from relinquishing, assigning, or transferring their parental responsibility to another person. Therefore, if a biological father fails to fulfil his duty, legal action can be taken against him.
On the other hand, spouses of mothers have full parental responsibility over their partner's children from previous relationships under the concept of transmission of parental responsibility.
Also read: A toast to my stepfather
Section 34(6) of the Children Act, 2022, stipulates that spouses have parental responsibility over their partner's children, whether or not they have legally adopted them.
This means stepfathers assume all the duties, rights, powers, responsibilities, and authority of a parent in relation to the child and their property. These duties are legally enforceable and cannot be relinquished or assigned to anyone else.
The legal rationale behind granting parental responsibility to stepfathers is multifaceted and is based on the best interests of the child which should always take precedence over the rights of the parents.
Therefore, in the best interest of the stepchildren, stepfathers should and must have parental responsibility over them. Further, spousal acceptance plays a crucial role.
When spouses accept their partners' children as their own, they automatically assume full parental responsibility. This acceptance is demonstrated through actions such as raising the children, providing for their education and medical needs and in other instances, altering their birth certificates to include them as parents.
Long-term relationship between children and their stepfathers creates a bond that necessitates stepfathers to have parental responsibility.
Courts have held that it would be morally wrong for a stepfather who has had a parent-like relationship with a child to disclaim all responsibility and duty to maintain the child when their relationship with the child's parent ends.
Therefore, both biological fathers and mothers' spouses have legal obligations and responsibilities towards children.
If your ex-husband had assumed parental responsibilities for your children, you may have legal grounds to pursue a claim against him for maintenance based on the principles outlined above.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
