# MY NEW SPOUSE WANTS TO ADOPT MY CHILD: CAN MY CHILD'S ABSENT BIOLOGICAL PARENT STOP IT?

By Kwamboka Isoe, Isoe & Associates Advocates LLP
Published: 30 October 2026

**Key takeaways**

- Ultimately, the law is concerned not merely with who biologically brought the child into the world, but also with the child's right to a secure, stable and permanent family environment.
- The best interests of the child must remain paramount, but they must be pursued within the framework of the law and with due regard to the rights of everyone concerned.

**Understanding stepparent adoption, parental consent and the best interests of the child under Kenyan law.**

Imagine a mother who has raised her child single-handedly for several years. The child's biological father has never been involved in the child's upbringing. He has neither maintained contact nor contributed towards the child's needs. The mother eventually remarries, and her husband develops a meaningful parental relationship with the child. He provides for the child, participates in school activities, attends to medical needs and treats the child as his own.

The husband now wishes to formally adopt the child and assume full legal parental responsibility.

There is, however, one complication: the biological father has not consented to the adoption.

Can he stop it?

Does the fact that he is the child's biological father give him an absolute right to prevent another person from becoming the child's legal parent, even where he has played little or no role in the child's life?

These are important questions in Kenyan family law. The Children Act, 2022 recognizes parental rights and the importance of consent in adoption proceedings. However, it also recognizes that there are circumstances in which insisting on a parent's consent may not serve the child's interests.

The law therefore provides a mechanism through which a court may dispense with parental consent where the statutory requirements are satisfied.

## 1. Can a stepparent legally adopt a child in Kenya?

**Yes. A stepparent can legally adopt their spouse's child in Kenya.**

Under section 2 of the Children Act, 2022, the definition of a relative for purposes of adoption expressly includes a step-parent.

This is significant because section 193 provides for kinship adoption, which may only be granted in favour of a relative of the child.

Consequently, where a mother or father remarries, their new spouse may apply to adopt the child as a stepparent.

Section 186(1) also permits two spouses to apply jointly for an adoption order. In a typical stepparent adoption, the biological parent and their new spouse may therefore apply together.

For example, where a mother wishes her husband to adopt her child from a previous relationship, the two may jointly seek an adoption order. The mother is already the child's biological parent, while her husband seeks to acquire legal parental status through adoption.

This is not merely a change of surname or an informal recognition of the new family arrangement. Adoption creates a permanent legal relationship between the child and the adoptive parent.

## 2. What happens when the other biological parent refuses to consent?

Ordinarily, consent is required before an adoption order can be made.

Section 186(8) of the Children Act requires written consent from specified persons, including a parent or guardian of the child.

The requirement protects biological parents from having their parental rights extinguished without their knowledge or participation.

However, the law does not give a biological parent an unconditional veto over adoption.

Section 187(1) empowers the court to dispense with the required consent in specified circumstances.

In the case of a parent or guardian, these include circumstances where the parent has:

- Abandoned the child;
- Neglected the child;
- Persistently failed to maintain the child; or
- Persistently ill-treated the child.

The court may also dispense with consent in other qualifying circumstances, including where the person cannot be found, is incapable of giving consent or has unreasonably withheld consent, subject to the statutory limitations.

This means that a biological parent who has been absent from the child's life cannot necessarily frustrate an otherwise lawful adoption simply by refusing to sign the consent documents.

However, absence alone is not always sufficient. The applicant must establish the relevant statutory ground through credible evidence.

## 3. When does an absent parent's conduct amount to abandonment or neglect?

This is where the law becomes particularly important.

There is a difference between a parent who has genuinely attempted to maintain a relationship with a child but has faced difficulties and one who has deliberately withdrawn from the child's life.

Section 187(2) provides guidance on when abandonment and persistent failure to maintain may be presumed.

For instance, abandonment may be presumed where the person having care and possession of the child has lost all contact with a parent or guardian for a period exceeding one year.

Similarly, persistent failure to maintain may be presumed where, despite demands, no parent or guardian has contributed to the child's maintenance for a cumulative period of one year.

The word "may" is important. These are presumptions that the court must evaluate in the circumstances of each case, rather than automatic grounds for terminating parental rights.

A parent may have limited financial resources but still demonstrate meaningful involvement through communication, emotional support, participation in the child's upbringing and other forms of parental responsibility.

Equally, a parent who has deliberately abandoned a child cannot necessarily rely on biological parenthood to prevent the child from acquiring a permanent and legally recognized family relationship with a stepparent.

The court must examine the parent's actual conduct, the reasons for their absence and the impact of the proposed adoption on the child.

## 4. What if the absent biological parent suddenly objects when the stepparent wants to adopt?

This presents one of the more difficult situations in adoption proceedings.

Consider a child who has lived with their mother and stepfather for several years. The stepfather has assumed the responsibilities ordinarily associated with fatherhood. The child knows him as a father figure, and he has consistently provided care, protection and emotional support.

The biological father, who has had little or no involvement in the child's upbringing, subsequently learns of the proposed adoption and refuses to consent.

Should that refusal automatically stop the adoption?

Not necessarily.

Section 187 allows the court to consider whether consent has been unreasonably withheld, in addition to the specific grounds relating to abandonment, neglect and persistent failure to maintain.

The court must, however, distinguish between a genuine objection arising from a parent's concern for the child and an objection that has no reasonable justification in the circumstances.

For example, a biological parent who has maintained contact, contributed to the child's upbringing and consistently exercised parental responsibility may have legitimate reasons for opposing an adoption.

On the other hand, where a parent has persistently failed to discharge parental responsibilities, has no meaningful relationship with the child and offers no reasonable explanation for obstructing the proposed adoption, the court may find that the statutory basis for dispensing with consent has been established.

The mere fact that a stepparent is financially capable or willing to adopt does not automatically make the biological parent's objection unreasonable.

The court must consider the entire history of the child's family relationships and the consequences of making the adoption order.

## 5. What have Kenyan courts said about stepparent adoption?

A particularly relevant decision is *In re Adoption of Baby GMN \[2025\] KEHC 1542 (KLR)*.

The case involved a mother who had a child from a previous relationship. The biological father had reportedly abandoned the mother when she informed him that she was pregnant. He subsequently disappeared and had never participated in the child's upbringing.

The mother later married another man, who developed a parental relationship with the child and assumed responsibility for the child's welfare.

The mother and her husband jointly applied to adopt the child. They sought, among other orders, the court's permission to dispense with the biological father's consent.

The court considered the evidence of the biological father's abandonment, the mother's continued care of the child, the stepfather's involvement and the reports prepared by the Directorate of Children Services and the adoption society.

The Children's Officer confirmed that the child related well with the stepfather and regarded him as his father. The assessments also supported the proposed adoption.

The High Court allowed the application and dispensed with the biological father's consent under section 187 of the Children Act, 2022.

The decision is particularly instructive because it demonstrates that a stepparent adoption is legally possible even where the other biological parent has not consented, provided the statutory grounds for dispensing with consent are established.

It also demonstrates that the court looks beyond the marriage between the biological parent and the proposed adoptive parent. The child's actual relationship with the stepparent, the stability of the home and the child's welfare are important considerations.

The decision should not, however, be interpreted to mean that every biological parent who is absent automatically loses the right to consent. The outcome depended on the evidence presented in that particular case.

## 6. Does the child's best interest override the rights of the biological parent?

Article 53(2) of the Constitution of Kenya provides that the best interests of the child are of paramount importance in every matter concerning the child.

Article 53(1)(e) also recognises the equal responsibility of both parents to provide for their child, whether married to each other or not.

These provisions must be read alongside section 187(5) of the Children Act, which requires the court, when considering whether to dispense with consent, to treat the child's interests as paramount while, subject to that principle, giving priority to the interests of the child's parents, guardians or relatives over those of the applicants.

This is an important balance.

The law does not suggest that biological parents cease to matter simply because another person is willing to adopt their child.

Equally, it does not require a child to remain indefinitely in a particular legal arrangement merely because a biological parent refuses to cooperate.

The court must consider matters such as:

- The nature and history of the child's relationship with both biological parents;
- The extent to which each parent has exercised parental responsibility;
- The child's relationship with the proposed adoptive parent;
- The emotional, social and material stability offered by the proposed adoption;
- The child's wishes, having regard to their age and maturity;
- Whether the proposed adoption will provide a secure and permanent family arrangement; and
- The consequences of extinguishing the existing biological parent's legal rights.

The court must also satisfy itself that the adoption meets the statutory requirements under section 194.

Importantly, adoption is permanent. Under section 202, the rights, duties, obligations and liabilities of the biological parents relating to the child's future custody, maintenance and education are extinguished and vested in the adopter.

That is why the court must approach an adoption application with considerable care.

## 7. Can a stepparent adopt a child simply because they have raised the child?

Not automatically.

The fact that a stepfather or stepmother has raised a child for several years is relevant, but it does not independently create a legal right to adopt.

The applicants must follow the prescribed adoption process, satisfy the statutory requirements and obtain the necessary assessments and recommendations.

Among other requirements, section 185 addresses the child's eligibility for adoption, the period of continuous care and control preceding the application, and the supporting report from a duly registered adoption society.

The court must also be satisfied that the proposed adoptive parent is suitable and that the adoption will serve the child's best interests.

Where the child has attained the age of ten years, their written consent is ordinarily required under section 186(8)(c). This is an important safeguard recognising that the child is not merely an object of the adoption proceedings but a person whose views and participation matter.

The adoption must ultimately be authorised by the court.

## 8. Conclusion: Does an absent biological parent have the final say?

The answer is no, not in every circumstance.

Kenyan law recognises the importance of biological parenthood and parental consent. However, it also recognises that parental rights must be considered alongside the responsibilities that accompany them and, above all, the welfare of the child.

Where one biological parent has consistently played no meaningful role in the child's life, while the other has established a stable family with a spouse who is willing to assume permanent legal parental responsibility, the court may dispense with the absent parent's consent if the statutory grounds are established.

A biological parent cannot necessarily use the requirement for consent as a permanent obstacle to a child's adoption.

Equally, a stepparent cannot assume that marriage to the child's biological parent automatically entitles them to adopt the child or that the other biological parent's rights can simply be disregarded.

Every application must be considered on its own evidence and merits.

### LEGAL REFERENCES

1. Constitution of Kenya, 2010, Articles 53(1)(e) and 53(2).
2. Children Act, No. 29 of 2022, sections 2, 185, 186, 187, 193, 194 and 202.
3. *In re Adoption of Baby GMN* (Adoption Cause E002 of 2024) \[2025\] KEHC 1542 (KLR) (21 February 2025).

**PREPARED BY:** KEMUNTO ORUTWA

**ISOE & ASSOCIATES ADVOCATES LLP**