Zimbabwe: Court Okays Joint Custody of 'Illegitimate' Children

20 March 2020

Parents of children born out of wedlock can now exercise joint guardianship and custody since constitutional rights granted to children changed the common law position that grants sole guardianship to the mother, the High Court has ruled.

Under the common law, the father could be made to pay child maintenance, but the mother had sole parental powers.

With such exclusive powers, mothers could decide to exclude fathers from the lives of their children and single-handedly decide issues concerning the children's welfare.

The landmark judgment handed down this week ended a long-drawn custody dispute pitting businessman Mr Frank Buyanga and his ex-girlfriend, Ms Chantelle Muteswa.

Justice Happias Zhou said the common law provision was discriminative.

He ruled that both parents can lawfully enjoy joint guardianship and custody of the child and when they appear before the courts they should be considered equal parents.

In the case of a deadlock, either can approach the court for recourse.

Justice Zhou said the previous common law position was in breach of sections of the Constitution that granted equal treatment to all regardless of many listed factors including whether a person was born in or out of wedlock.

"It is unfair discrimination to deny a child the benefits of associating with his or her biological father, which is an aspect of parental care, on the mere ground of the marital status of the parents at the time he or she was born.

"Care means more than just channelling monetary maintenance to the child through the mother.

"It entails the opportunity to influence and shape, the personality, character, and life of the child by spending time with the child and being involved in making choices about the child's life and future," he said.

Justice Zhou said the common law position discriminates against both the child and the father.

"The treatment of the father shows that a child was regarded as 'fatherless' and deserving of no paternal care or attention save for the purposes of maintenance.

"The child was in essence being regarded as a commodity of some sort given that without rights of access, custody or guardianship, the maintenance contribution was essentially channelled through the mother of the child.

"In practice, a father could pay maintenance for a child that he had never seen in his life and the child would be receiving such benefit from someone he or she had never seen," ruled Justice Zhou.

Advocate Thabani Mpofu, instructed by Mr Admire Rubaya of Rubaya & Chatambudza Legal Practitioners, represented Mr Buyanga.

Advocate Fadzai Mahere and Wilmont & Bennett law firm represented Ms Muteswa's side in the child custody wrangle.

Justice Zhou ordered both parties to ensure their child is interviewed by a Government social worker to establish the damage, if any, he could have suffered during litigation.

The social worker is expected to prepare and present a report with recommendations on how parties shall exercise their joint custodial right without disrupting the social life of the child within 30 days of the issuance of the order.

Both parties must equally share any costs associated with the social worker's services.

Mr Buyanga and Ms Mteswa's dispute started in the Civil Court, but due to appeals and cross appeals, it spilled into the High Court.

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