Guardianship of children born inside wedlock in Zimbabwe under general law: an overview
Guardianship in its widest sense connotes custody and embraces the care and control of the minor's person as well as the administration of his property and business affairs. There are instances where custody and guardianship are separated; the custodian parent has the care and control of the minor's person, while the guardian parent administers his/her property and business affairs (guardianship) in the narrower sense
Guardianship, sole guardianship and testamentary guardianship: the concepts and differences
Further, the concept of guardianship and sole guardianship are two different issues. That is why they are governed by different sections under the Guardianship of Minors Act (Chapter 5:08). Guardianship per se is the paramount right exercised by the father of a child born inside wedlock in terms of common law and this is referred to as guardianship simpliciter. This right is subject to section 3 of the Act and the power of the court as the upper guardian of children.
In terms of Section 3 of the Guardianship of Minors Act (Chapter 5:08), a father whose guardianship simpliciter has not been challenged can exercise his rights in consultation with the mother of the child. The consultation duty imposed on the father by the law equally applies to parties who both married and divorced. Situations may arise where parents may disagree on what is best for the child, the Act is clear and it provides as follows,
"...and if a decision of the father on any matter relating to guardianship is contrary to her wishes and in her opinion likely to affect the life, health or morals of the minor to his detriment, the mother may apply to a judge in chambers, who may make such order in the matter as he thinks proper."
Sole guardianship is provided for in terms of section 4 of the Guardianship of Minors Act Chapter (5:08). This normally comes in play when parents of a child separate and can only exist by means of a court order. Either parent may on an application to the High Court be appointed a sole guardian to a minor child provided it would be in the best interests of the minor to do so. He is appointed to act alone without consultation with the mother as is provided for in section 3 of the Act. A parent granted sole guardianship may, unless the court has ordered otherwise, by testamentary disposition appoint any person to succeed him/her as a sole guardian. Therefore, a child/minor can have a testamentary guardian even when the other parent is still alive.
The father of a minor to whom the sole guardianship of the minor has not been granted shall not be entitled by testamentary disposition to appoint any person as the guardian of the minor in any other manner than to act jointly with the mother. He can only appoint a guardian to act not in consultation with the mother only if he has been awarded sole guardianship of the child by the court.
A testamentary guardian appointed through a will by a father who is exercising his guardianship simpliciter can only act in consultation of the mother and where the two disagree, the wishes of the mother will always prevail. However, in instances where the testamentary guardian deems the wishes of the mother to be detrimental to the life, health or morals of the minor, may apply to the High Court for directions, and the court may make such order regarding the matters in difference as it may think proper.
Custody of children born inside wedlock under general law
Custody deals with the daily care and control of the minor's person. The custodian parent will decide the school, church, place of residence etc for the minor.
When parents are living together they have joint custody. In the event of parents separating custody is given to the mother and this custody can be termed temporary custody for it can be subjected to contestation. If parents separate, then the custody should be given to the mother until and unless an order regulating custody has been made.
Sole custody is the term used to distinguish sole custody one parent acquires by virtue of an order of court when the spouses are separated or divorced from the joint custody parties have when they are staying together.
The father of the minor can make an application to the court depriving the mother of the sole custody of the minor and the court can make an order depriving the mother of the sole custody of the minor and granting the sole custody to the father if the court is satisfied that it is in the best interests of that minor that the father be granted the sole custody of that minor. The court can also make such order relating to the payment of maintenance by the mother and the right of the mother to have access to that minor as the court thinks fit
Suffice to mention is that the parent who would have been given sole custody of the minor can through a will appoint a custodian and the principles that apply on guardianship equally apply.
Effect of an award of custody order
If the mother is awarded custody, the father still retains the guardianship of the child which he must exercise in consultation with the mother unless on order by the court declaring otherwise has been made as per the dictates of the law.
Award of custody to a third party
Sometimes the custody of a child whose parents are alive can be given to a third party but this is only done in exceptional circumstances- if there is harm or danger to the child's welfare. What a person making an application for custody ought to bear in mind is that the courts only look at what is in the best interests of the child and not the interests of the applicant.
Access is the right of a non custodian parent to see his/her child, spend time with the child be it over a weekend and holidays. The court normally gives an order as to how and when access should be exercised. An access order can be varied if the custodian of the child deems it improper for the minor to maintain contact with the non custodian parent. The determination will be made based on the best interests of the child.
Removal of child from Zimbabwe
A custodian parent may want to settle in another country and take the child with him/her. If the parents cannot agree or there is no consent from the other custodian parent, since this will also remove the jurisdiction of the court, the High Court will have to make a decision as the upper guardian of the child has to make a decision. The guiding principle is the welfare of the child concerned. The removal must be in the best interests of the minor child and not the interests of the parents involved.
Guardianship and custody of children born outside wedlock under common law
Under common law the father of a child born outside wedlock was just like any other third party whose only relevance was only considered when it comes to the issue of paying maintenance. The mother of the child inherently enjoyed the rights of guardianship and custody and the father would maintain a child maybe as by the order of the court without even seeing the child he is maintaining.
Presently parents of a child born outside wedlock now have equal rights when it comes to issues of guardianship, access and custody. This position can only be contested when it appears that it will not be in the best interests of the minor child that he or she be exposed to parental care of the child.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.