Can I formally adopt my wife’s son from a previous relationship?

LEGAL EYE: Can I formally adopt my wife’s son from a previous relationship? |Ombogo and Company Advocates

With Gillian Ombogo,

LEGAL EYE: Can I formally adopt my wife’s son from a previous relationship? |Ombogo and Company Advocates

My wife and I have been married for five years. Her ex-husband, a Kenyan, who has since died, lived with their child (my step-son) in Rwanda. Every school holiday, the 16- year- old visited us and we developed a close bond. The boy permanently moved to Kenya to live with us, almost two years ago. I now wish to formally adopt him. Is he eligible for adoption? I also have a biological daughter from a previous relationship, and my wish is for my step-son to also inherit my properties. Will he be equally entitled once adopted? Lastly, which body has the final say and is an adoption permanent?

Brian Kosgey, Nakuru County

Dear Kosgey,

The Constitution and the Children’s Act are the laws that guide on matters of Child adoption in Kenya. Article 53(2) of the Constitution stipulates that the child’s best interest is of paramount importance. A child’s best interest is majorly considered by a court seized with the question of child adoption.

The law allows you to adopt your step-son as it stipulates that an application for an adoption order can only be made if the child has been in the continuous care of the adopter parent for three consecutive months prior to filing of the application. Both the child and yourself may further be evaluated and assessed by a registered adoption society in Kenya.

Your son is eligible for adoption as the law provides that any child can be adopted provided that he is a resident in Kenya regardless of whether he is a Kenyan citizen or whether he was or was not born in Kenya.  However your application for adoption must include consent from your step-son because he is above 14 years of age. You will also require consent from your wife because she is the child’s biological parent.

The interests of your adopted son will be safeguarded even after your demise and he will be entitled to benefit and inherit from your estate, just as if he was your biological child.

The law provides that only the High Court has jurisdiction to hear and determine adoption applications. If it grants you the adoption Order, the court will direct the office of the Registrar General to make an entry in the Adoption Register.

The court adoption orders are permanent. You will acquire all parental rights, duties, obligations and liabilities over your adopted son which are irreversible.

Published in the Daily Nation Newspaper of 1st January 2021