Who keeps the kids after devorce

Quite a vicious war ensues when a man and a woman (whether married or cohabiting) go separate ways when during the course of the relationship, they were blessed with children.

 

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The war that I am writing about is captured in one word called –Custody.  As often happens with most couples, children are a product of the relationship.  If the unfortunate happens, and the parties separate or divorce while the children are still minors, the inevitable question of who will have custody of the children has to be answered.  For the lucky few, an agreement is reached.  However, for some, which is the majority there is a bitter fight which often has to be decided by the courts.  Sometimes this goes all the way to Supreme Court.

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In layman’s terms, custody of children refers to taking primary care of the children, having them under one’s roof and being the one with the responsibility of taking day to day care of the children.  Simply put, the party with custody stays with the children while the non-custodial parent is granted access or visitation rights.  It is important to note that the rights as a parent has under Zimbabwean law depends on the kind of relationship the parties had when they gave birth to the children. 

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If a child is born to parents who are not married either under the general law or custody law, the mother of that child is the natural guardian and custodian.  A father f that child has very limited rights of access in such a situation.  However, where the parties were customarily married or married in terms of general law, other considerations come into play.

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The situation that minor children find themselves in when parents divorce is uniquely distressful.  Almost invariably, children are caught in between a rock and a hard place.  In a number of scenarios, the parent staying with the children influences them against the other.  An American clinical psychologist, Richard M. Gardner has popularised what he calls the Parent Alienation Syndrome which he says affects most children with divorced/separated parents.  According to his theory, a custodian parent will poison the minds of the minor children against the non-custodian parent to the extent that the children end up hating the alienated parent. 

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He says this systematic brainwashing is done by painting a very negative picture of the alienated parent.  Nothing the alienated parent does is good.  The custodian parent makes the children believes/he is only the one who loves the children while the alienated parent is reviled.  The result, according to the theory, is that the children will hate the alienated parent passionately, while blindly following the custodian parent.  It is said however, when the children eventually grow up and mature, they might learn that the alienated parent was not as bad as they believed. 

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In all these instances, the High Court, as upper guardian of minor children, has preferred to look at the sumtotal of the situation before deciding who best serves the interests of the minor children,  What is undeniable is the face that the interests of the parents or relatives are not a consideration.  It is a known fact that most parents will use the children as a pawn in the fight against an ex-spouse.  So the sole consideration by the court will be; what serves the children’s best interest?

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Once the court has granted custody to one parent, the other parent is granted access.  This means, one parent will stay with the children while the other is allowed to visit the children.  Again, this can be done by mutual agreement of the parties or by the court, in a court order.  As with custody, access issues are determined by the best interests of the children.  It is in the children’s interest that while staying with the one parent, they need to maintain contact and spend some time with the other parent.

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The conditions under which the access or visits are arranged need not be unreasonable or burdensome on the children.  Unfortunately, this has also been the subject of very bitter lawsuits as, for reasons with nothing to do with the best interests of the children, certain parents have been denied access or visits to their children.  As I usually implore readers, it is important to know the legalities of the issues before plunging headlong.

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The effect is said to be that they will not trust either the alienated parent or the custodian parent and will grow up to unstable adults themselves.

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Before deciding on who to give custody to, Zimbabwean courts are guided by one major principle.  Both in general law and customary law, the best interests of the minor children are the paramount consideration when it comes to custody.  In determining what is in the best interests of the children, there are so many factors to be taken into account.  In the South African court case of McCall v McCall, 1994, which is often courted by our own Zimbabwean Courts, the following is part of what is considered:

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·        The capabilities of the parties

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·        The character of the parties

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·        Temperament of each of the parents

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·        Capacity of each of the parents

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·        The ties between the parent and the child

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·        The child’s existing environment and preferences’

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·        The desirability or otherwise of keeping siblings together

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·        The desirability or otherwise of applying the doctrine of same sex matching and so on.

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Where both parents are suitable to stay with the child, there are cases where the courts have ascertained the child’s preferences about which parent the child wishes to stay with.  This was highlighted in the 1996 Zimbabwe Supreme Court case of Zvorwadza v Zvorwadza.  In such case, the court makes sure that the child is of sufficient age and intelligence to be able to express a proper opinion. 

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In the same case, the court also ruled that even if one of the parties has more earning capacity and can afford superior accommodation and amenities, that alone is not enough to grant them custody. 

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To that extent, there is one case where the court granted custody to a mother who has moved in with her maternal parents in the high density suburb of Mufakose despite the father have a more spacious home in upmarket Mt Pleasant. In this instance, the court ruled that superior material conditions did not necessarily translate into a happy home for the children.

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Certain social beliefs about the custody of children have been disregarded by our courts.  A good example is the High Court Case of Galante v Galante, 2002, where the Judge ruled that there is no rule of law which states that the mother should be awarded custody of minor children.  Or that minor girl children are better off with their mother.