Custody refers to the legal right a person (usually a parent) has over a child including the right to have the child with him/ her, right to regulate their daily life, right to determine all questions relating to the their educational, social and religious upbringing et cetera. The issue of custody usually becomes relevant when parents start living apart, separate or get divorced. In Zimbabwe, custody is governed by both statute (Guardianship of Minors Act) and the common law.
The Act uses the term ‘sole custody’ but unfortunately does not define this term. It has been held that this term was possibly introduced to contrast with the situation that prevails while the parents are living together. In determining the issue of custody, the Act enjoins the court to consider the best interests of the child. This is also in line with section 81(2) of the Constitution of Zimbabwe which provides as follows;
‘A child’s best interests are paramount in every matter concerning the child’.
In granting an order for divorce or judicial separation, the High Court or judge may grant sole custody to either parent if it is in the best interests of the minor child to do so. The best interests of the minor child is not what is best for the contending parties. The court as the upper guardian of all minor children will have to consider on the evidence given which of the parents would best care for the child. That a parent cannot financially look after the child is not in itself a factor to deny a party custody as the non- custodian parent can be ordered to pay maintenance. Care and affection is considered more than luxury and comfort. It would for example not be in the best interests of the child that his/her custody be awarded to a parent who has a known history of child abuse.
The court is also empowered by the Matrimonial Causes Act award custody to someone other than the parents. This deprivation of custody to the natural parent can only be under special circumstances. The test is whether the parents should be deprived of custody for any reason involving harm or danger to the child’s welfare.
Section 5 of the Guardianship of Minors Act creates what has been referred to as statutory custody. In this case where parents start living apart the mother shall have custody of the minor child, until the Children’s Court or the High Court determine otherwise on application by the father (or mother). This section is therefore of importance to those who are in unregistered customary law unions as they cannot apply for judicial separation or divorce and put the issue of custody as an ancillary matter. Where a child is born out of wedlock the mother is the custodian of the child and can only be deprived of the custody under special circumstances. The father’s position in this case is like that of any third party.
It is rare for the court to grant joint custody. In Maarschalk v Maarschalk 1994 (2) ZLR 110 (HC) the court held that such an award should be cautiously made in light of the obvious pitfalls. The court however made it clear that in appropriate circumstances, joint custody may be awarded where it is in the best interests of the minor child to do so.
An order for custody goes hand in hand with an order for access in relation to the non-custodian parent. Only under exceptional circumstances, where it is not in the best interests of the minor child will access be completely denied. Where the parents and the minor children are resident outside Zimbabwe it is advisable to have the courts in that jurisdiction determine the issue of custody and access.
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