Fidelis Munyoro
Chief Court Reporter
THE days when mothers automatically enjoyed a superior claim to custody of minor children simply because of their gender are over, the High Court of Zimbabwe has declared, reaffirming a progressive shift in the country’s family law that places both parents on an equal legal footing.
In a ruling that underscores the changing face of parental rights, High Court judge Justice Catherine Bachi-Mzawazi said fathers must now be recognised as equally capable custodians, with the welfare of the children, rather than outdated assumptions about motherhood, determining who gets custody.
“There has been a dynamic progressive shift, ushering in the constitutional tenet of equality. Fathers are now recognised as able custodians of minor children alongside their female counterparts,” Justice Bachi-Mzawazi said.
But while the court affirmed equality between parents, it made clear that equality does not automatically translate into a right to take custody.
The best interests of the child remain the decisive consideration.
The judgment arose from a custody dispute involving Florence Muoni and her former customary law husband, Joseph Dzotizeyi, over their three children aged 13, 10 and seven at the time of the judgment.
Muoni, a qualified teacher who relocated to Zvimba, had sought sole custody after the couple dissolved their customary union in September 2024.
The children remained with their father and stepmother, while attending boarding schools and returning home during school holidays.
Her central complaint was that Dzotizeyi was allegedly preventing her from participating in the children’s lives, denying her visitation rights and instructing school authorities not to allow her access to them, even on school premises.
The dispute shined a light on a significant legal change introduced by the Guardianship of Minors Amendment Act, 2022, which repealed discriminatory provisions of the previous law and introduced a framework for joint guardianship and custody.
Under the amended law, parents, whether married or not, are expected to exercise guardianship and custody rights in consultation with each other.
Where parents no longer live together, however, the custodial parent generally exercises guardianship rights over the child, unless a court order requires consultation with the other parent.
Justice Bachi-Mzawazi criticised the application for relying on what she described as an outdated legal position that gave mothers a superior claim to custody.
She said this misconception had also influenced aspects of the reports prepared by the curator ad litem (a court-appointed legal representative , usually an advocate or attorney, who acts in the best interests of a minor, a person with a mental illness, or someone with diminished capacity specifically during legal proceedings or transactions) and the Master of the High Court.
The judge stressed that guardianship involves decisions affecting a child’s essential affairs, including health, education and general welfare, making meaningful parental consultation important even where one parent retains custody.
However, the court was not persuaded that the children’s existing arrangement should be disrupted.
Investigations by the curator ad litem indicated that the children had a good relationship with their stepmother and her family and were happy with their living arrangements during school breaks.
Although the curator had not interviewed Dzotizeyi, the reports did not identify shortcomings in his parenting that justified removing the children from his care.
The court acknowledged the father’s lack of cooperation during the proceedings, including difficulties in securing service of the application and obtaining his input.
Nevertheless, it found that the evidence on record did not justify further intervention by a social welfare officer.
Stability also weighed heavily in the decision.
Muoni had conceded that the absence of a permanent residence could mean moving from one place to another, raising concerns about continuity in the children’s lives.
Citing Supreme Court authority, Justice Bachi-Mzawazi invoked the need to protect children from decisions based on uncertain circumstances.
“In our view, the welfare of the minor child is delicate and important. It should not be prematurely exposed to unverified parental circumstances,” she quoted Justice Chitakunye JA as saying in Chantelle Tatenda Muteswa v Frank Buyanga Sadiqui, SC131/26.
The court ultimately declined to grant Muoni sole custody, ruling that the children should remain with their father for now.
But it did not leave the mother without recourse.
Under the order, Muoni was granted access to all three children during the first two weeks of every school holiday, with their father entitled to the remainder of the holiday period.
Dzotizeyi was also directed to consult her on guardianship matters as and when the need arose.
Where the parents reached a stalemate, however, the custodial parent’s decision would prevail.
