Tuesday, April 16, 2024

Biological vs Putative father: What Kenyan law says and their role in a child’s life

A few years a go, a local billionaire was taken to the Children’s Court. The billionaire, who at the time was in his seventies was alleged to have fathered a child with a 20-year-old girl.

After the baby was born, he had appointed a local advocate as a putative father for the child. This refers to a man whose legal relationship to a child has not been established, but who is alleged to be or claims that he may be the biological father of a child of a woman to whom he was not married at the time of birth.

A putative father may be obligated to support the child, either by voluntary agreement or court order. This case raised questions on whether a father can donate his parental responsibilities to someone else who acts as a putative father.

According to Sheila Sabaya, an Advocate of the High Court who specializes in family law, the new Children’s Act 2022 gives equal parental rights to both the father and mother regardless of their marital status.

“In balancing the child’s best interests, the parent can then appoint a testamentary guardian and or have a guardian ad litem appointed for their child,” says Sabaya.

She explains that a court usually appoints a guardian ad litem to represent the child’s best interests where the matter involves a dispute over custody, child support, divorce or even adoption.

On the other end, a testamentary guardian is the person a parent may appoint to look after your child in the event of your death.

By the time an alleged biological father decides to appoint a putative father, Sabaya says that he will have become content that he is the biological father.

“The principle is usually that you cannot donate something you don’t have. You cannot donate your parental responsibility to an advocate through a power of attorney (putative father) if you’re not the actual father,” she says.

At the same time, the parental agreement the mother and the father of the child willfully enter into can be legally accepted by the court.

“The court can recognize a parental responsibility agreement between the man and woman in regard to their child even if this agreement was signed out of court. The agreement will be required to meet the threshold of being legally binding which includes being signed in the witness of a legal children’s officer,” says Sabaya.

However, the father cannot be forced to give the child their name. “The child is usually entitled to an identity. However, this identity is not limited to a name only. This means that the court will not micro-manage how the parents decide to name their child,” says Sabaya.

In most instances, the presence of the father’s name on the birth certificate reinforces parental responsibility on the father.

“Even if a man ‘unknowingly’ assumes parental rights and responsibilities and has the child ‘s birth certificate carry his name as the father, within the meaning of Section 24(1) of the Children Act, it is presumed that he has  taken up parental responsibilities the moment that child was born. He is therefore bound to bear parental responsibility towards the child as he would have as the biological father,” says Harriet Onyiego who is an Advocate of the High Court.

Where there is doubt on who is the biological father of the child, the court can make an order to compel a putative father undergo a DNA test to determine paternity. In the MW vs KC (2005) matter, the court identified the conditions for this as including the likelihood of the putative father being the child’s biological father, and the violation of the child’s right to know their father.

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There are other limitations that you may face during a child support petition. For instance, when petitioning against parental negligence the court will not force your child’s father to spend time with their child if he is not interested.

“The court will only enforce an order for visitation if one parent cites that they been denied this right,” says Ms. Sabaya. This circles back to guaranteeing the best interests of the child.

“A father who has been compelled to spend time with their child might turn violent and abusive against them. This is an example of why visitation by a father who wants nothing to do with the child will never be ordered. It’s against the child’s best interest,” she says.

Takeaway: There are three main types of fathers. These are:

  • Putative father: An alleged biological father of a child who has no legal father.
  • Natural father under the equitable-parent doctrine: A man who is not the biological father of a child born or conceived during wedlock, but who is married to the child’s mother.
  • Legal father: A man who the law has presumed to be a child’s father or a man who the court has determined to be a child’s father.

For legal advise and consultation on family matters, you may reach out to Sheila Sabaya on [email protected]

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