CUSTODY OF MINOR CHILD IN DIVORCE IN ZIMBABWE
By Bernard Furidzo
Custody of minor children upon divorce in Zimbabwe is governed by the Guardianship of Minors Act (Chapter 5:08) and the common law. The Act unfortunately does not define the term custody. In terms of the common law the custodian parent is entitled to have the child with him/her, to regulate her daily life, decide all questions relating to education, training and religious upbringing, to choose and establish his/her residence and to decide with whom she is allowed to associate et cetra.
The Act in Section 4 creates what is called “Sole Custody” as distinguished from shared (joint) custody which parents have as long as they are living together. The High Court or a judge may grant to either parent sole custody of the minor if it is proved that it would be in the interests of the minor to do so. The guiding principle is therefore the “best interests” of the minor child. The question to be answered in every case is which of the parties would best care for the minor in terms of physical well-being, moral culture and religious development. The financial stability of a party is not in itself a factor that can determine the award of sole custody as the financially stable party can always be ordered to pay maintenance for the minor child. What is critical is that the child must feel that it is welcome, wanted and loved.
The non-custodian parent has a common law right of reasonable access. The parties may specifically agree to the particulars of access but this is governed by the test of reasonableness. It is only in exceptional circumstances where the court will refuse the non-custodian parent access to the minor children. Where there is an access order it can be enforced in terms of section 6 of the Act.
As stated above, the Act has created ‘sole custody’ and therefore our courts are generally reluctant to accept an agreement where the parties upon divorce share custody (joint custody). The reason is that the child must know where she stands and to allow responsibility to be divided would confuse the child as, the parties can always undermine each other to the detriment of the child.
The modern trend in some countries like the United Kingdom and the USA is to award joint custody to the parents. It is submitted that one may be able to convince our courts to grant joint custody if they can provide the evidence and recommendations of experts like child psychologists. Admittedly, this will be a difficult task given the general animosity that characterize the relationship between divorcing parties vis-à-vis the best interests of the minor child.
Where the parties to the divorce action are outside the country with the minor children the issue of custody can best be dealt with by the court where the children are for the purposes of enforcement. It is important to note that the Act provides that the custodian parent can by testamentary disposition, appoint any person to be vested with sole custody. An order for custody can be varied on application but the best interests of the minor remain of paramount importance.
While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.
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