NewZimbabwe.com has invited Mr. Vengai Madzima, the Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal) to discuss with us legal issues that affect Zimbabweans living in the diaspora. The discussions are general and those seeking specific legal advice should contact their lawyer.
Reporter: Welcome back Mr. Madzima, our discussions on divorce in the diaspora last week brought out the issue we want to discuss this week. Custody or guardianship of children resident in Zimbabwe by family members resident in the Diaspora.
VM: I can understand why you have brought this particular issue up as I touched on it briefly in our discussion on divorces in the diaspora last week.
Reporter: Let me get on straight to the questions, our readers are interested to know whether they can have custody of children of family members so they can bring them to the Diaspora.
VM: I understand there are people in the diaspora who wish to bring children and sometimes orphans of family members to reside with them in the diaspora. Your question however requires me to simplify certain issues. I will start by explaining what custody, guardianship and access is.
Custody refers to the right to look after or keep a child. Guardianship on the other hand allows the holder to exercise more rights which include looking after the child's affairs. This means that the legal guardian can enter into contracts on behalf of the minor or alternatively, refuse any legal process to be done for the child, for example, getting a passport, adoption application et cetera. Access is defined in the strictest sense of the word, being the ability to visit the child or stay with the child temporarily. I explain this intentionally as our courts, being the upper guardian of all minor children, are careful to divest either of these from the parents. In short, yes it is possible, but there will be a few considerations.
Reporter: Having explained the differences, which one of the three is common with diaspora applications?
VM: That is a very broad question, the answer is dependent on the circumstances of each particular case. I will give an example, if it's a divorce case, maybe one of the parents just requires to secure access to the minor child.
I take note that in your previous question, you referred to family members. Family members are not automatically bestowed with guardianship as parents of the child are. Where family members are concerned, some jurisdictions are specific in that they require the diaspora family member to have guardianship of the minor child before the child is allowed to come to the host country under their care.
Reporter: How quick is the process to get guardianship?
VM: I suppose that is the key question. To understand the process, you have to go back to the point that I raised earlier saying that the High Court is the upper guardian of all minor children. I said further that the court takes a careful approach when considering such cases. Guardianship is not divested willy-nilly or by mere say so from those that naturally enjoy the right. The court must satisfy itself that the circumstances are ideal for guardianship to be awarded to the person applying for it.
Reporter: Let me rephrase, what processes is involved in getting guardianship?
VM: First a curator has to be appointed by the court, whose responsibility is to assess whether or not the circumstances the child is living in warrant guardianship to be divested to another. The curator makes an investigation and writes a report on their findings. Once that process is completed, an application is then made to the court for guardianship stating compelling reasons why guardianship should be granted to the person making the application.
Reporter: Generally what do the courts consider in such applications?
VM: I am glad you said generally because there is no one-size-fits-all approach in deciding these cases. Each case is looked at and decided on according to its merits. Generally, however, the courts will look at the circumstances prevailing necessitating guardianship to be divested from the natural guardian, the relationship between the person applying to get guardianship and the child, their ability to take care of the child and the environment where child will be taken to is also considered. If the child is of sufficient maturity, their stated interests are also considered. The overarching consideration is what is in the best interest of the child.
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Reporter: Thank you, Mr. Madzima we have to end here, because of our time.
VM: Thank you.
Vengai Madzima is a Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal) in Zimbabwe and can be contacted at vengai@mcmlegal.co.zw
NewZimbabwe.com will have another discussion on legal issues affecting our readers in the diaspora next week, share your comments and experiences with us.
