Law about access, custody of minor children

 

Trust Maanda

ISSUES of custody of minor children and access to them arise mainly on separation of parents, or when the child is born out of wedlock.

Custody refers to a parent’s right over a child to live with the child or have the child under his or her control and to regulate their daily life, their educational, social and religious upbringing and nurturing.

Access is the right to visit or be visited by the minor child, including staying with the child temporarily, like during weekends or holidays.

The law regulating the custody of children is the Guardianship of Minors Act (Chapter 5:08).

Where parents commence living apart, the mother of the minor child has got the custody of that child until an order regulating its custody is made by a court.

In other words, on separation, the mother of the child is the automatic custodian.

Where, in that case, anyone deprives the mother of custody, or otherwise denies her the custody of that minor, the mother may apply to court for an order declaring that she has the sole custody of that minor.

The court may grant the order and, if necessary, direct the person, to return that minor to the custody of the mother.

While the mother is the automatic custodian on separation, the father can bring an application for custody or access, if it would be in the best interests of the child that he should have custody.

At common law, the mother of an illegitimate child is the sole custodian.

 

Unlike in the case with the father of a child born in wedlock, there is no inherent right of access or custody for a father of a minor illegitimate child.

The father, in the same way as other third parties, has a right to apply and will be granted these if he satisfies the court that it is in the best interests of the child.

 

The onus is on the father to satisfy the court on the matter and the court will not grant access unless there is some very strong ground compelling it to do so.

Whether it is a father of an illegitimate child or one born in wedlock, the court considers what is in the best interests of the minor child.

 

The type of relationship between the parents of the child is irrelevant.

 

A bad wife or husband is not necessarily a bad parent.

In determining the meaning of “best interests” the factors the court considers include; the love,affection and compatibility between the parent and the child, the capabilities and character of the parent and their effect on the child’s needs and desires,the parents’ appreciation of the child’s feelings, the ability of the parent to provide for the basic needs of the child, such as food, clothing, housing, and the educational well-being of the child, both religious and secular.

The mental and physical health and moral suitability of the parent; the stability or otherwise of the child’s existing, environment, the desirability or otherwise of not separating siblings, are relevant factors.

Although the father of an illegitimate child has no inherent right of access and custody at common law, Section 81 (2) of the Constitution of Zimbabwe provides that the child’s best interests are paramount.

Where, therefore, the father of an illegitimate child seeks custody or access, the court must place both parents’ rights on an equal footing.

 

What is paramount is the best interests of the child.

Distinguishing between an illegitimate and a legitimate child is discriminatory, contrary to Section 56(2) of the Constitution which guarantees the right not to be discriminated against on whether one was born in or out of wedlock.

All children have rights and these rights cannot be affected by the status of their birth or marital status of their parents.

The differentiation of the rights of the child born in wedlock and one born out of wedlock was adjudged, in the case of D v H HH 447/18, to be discriminatory against the children on the grounds of their status by birth.

I add that it infringes the right of a father of an illegitimate child to equality before the law, if the father of a legitimate child is treated differently from the father of a legitimate child.

It is discriminatory if he is treated differently from the mother of the same child in relation to custody or access.

All children have a right to parental care, not just maternal care, and all parents have right to equality before the law with regards to custody and access.

The best interests of the child are paramount.

 

Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646