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.
Herald
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