A stepfather can win the custody of a child over the biological father. Yes, that is legally possible in Kenya, especially if the minor's mother dies.
Many believe biological relations give people an advantage in the case of a fight for the custody of children. While that is also true, the law provides circumstances under which a court can hand a stepfather the sole custody of a child over the minor's biological father.
However, just like in most legal matters, circumstances vary, and courts have to consider the custody matter on a case-by-case basis.
To start with, the husband has parental responsibility over the children his wife had with her former partner. This is irrespective of whether the man has legally adopted his spouse's children or not.
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, allowing them to assume the duties, rights, powers, responsibilities, and authority of a parent in relation to the child and their property.
Therefore, even if the stepfather divorces the mother, they could pursue custody of the children in court, where additional factors are considered.
In court, the best interests of the child are considered in cases where both biological and the stepfathers are seeking custody. These factors include the child's age, emotional ties with each parent, as well as their property.
In a situation where the stepfather has been the primary caregiver and the biological father has been absent or incapable of providing proper care, the court may grant custody to the stepfather.
If the biological father is absent from the child's life, the stepfather may win the custody battle, where the well-being of the child is solely prioritised.
The conduct of the biological father is also considered in such cases. A father whose behaviour may be deemed detrimental to the child's well-being is more likely to lose custody.
These could be cases where domestic violence or abuse is involved, either toward the child directly or to the mother. The court will, in these cases, prioritise the protection of the child, granting their custody to the safer parent.
For instance, in the case of Family Appeal 015 of 2020, the court emphasised that the best interests of the child are paramount in custody decisions.
In that case, the stepfather did not retain custody of the child after his wife passed away due to his conduct, which included barring the biological father from accessing the child.
"To remove the child from her father will not serve her interest under article 53 (1) and (2) of the Constitution. I do not find any principles under Sections 76, 82 and 83 of the Children Act that were not considered," the ruling stated.
In a nutshell, there are some cases, albeit few, where the courts will side with the stepfather, especially if the biological father is not fully invested in the child's life and living with them could negatively affect the child's welfare.
