We hereby petition the following :
• The Minister of Justice, Legal and Parliamentary Affairs
• The Speaker of Parliament
• The President of the Senate
• The Judicial Services Commission
• Zimbabwe Lawyers for Human Rights
In our petition we demand that you to amend Child custody laws to give Fathers a fair and equal chance to custody of children born out of wedlock. We note with concern that fathers are generally losing custody cases in Zimbabwean courts on law. We feel that fathers are being denied the right to a fair trial which is an absolute right as section 86(3)(e) provides that no law may limit and no person may violate the right to a fair trial. Most child custody hearings are already tilted in favour of the mother and we pray that this be rectified.
The Constitution of Zimbabwe in section 19 places a duty on the State to ensure that the best interests of a child are paramount in any matters relating to children. In fulfilment of that the legislature came up with the Guardianship of Minors Act, Chapter 5:08, which Act serves to address issues relating to the guardianship and custody of minors.
However, there is a common law position that is applied widely in our courts that the mother of a child born out of wedlock is the sole guardian of and has exclusive custody over that child. This has resulted in fathers losing their rights and contact with their children due to such outdated biases that diminish the role of the father. 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 cetera.
The Act in Section 4 creates 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. However, section 5(1) of the Act gives the mother sole custody pending a decision of the High Court on the custody of that child. This places the father at a disadvantage and requires him to make an application to the High Court for an order requesting access to the child or challenging custody. And this again leans more towards the common law position than the provisions of section 19 of the Constitution.
This petition also seeks to implore the legislature to amend the Guardianship of Minors Act to include joint custody. This would be in the best interest of the child as neither parent would be alienated from the child thus giving the child the opportunity of having both biological parents irrespective of their separation. 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. 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.
The prayer therefore is that section 4(1) of the Guardianship of Minors Act apply unencumbered and that guardianship and custody issues relating to minors be dealt with on a case by case basis using the best interests of the child as a yardstick and afford equal rights to fathers.
Signed the People of Zimbabwe
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