The Custody Rights Of Fathers Relating to Minor Youngsters In Zimbabwe – Household and Matrimonial

Zimbabwe:

Fathers’ Custody of Minor Children in Zimbabwe

December 01, 2020

ChimwaMurombe’s Legal Practice

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Do both married and unmarried fathers have rights in relation to minor children and, if so, to what extent do these rights apply in relation to custody in the event of divorce or separation? Many concerned fathers in conjugal acts consider their chances of success as having custody of underage children. It is not uncommon for a father to delay a divorce lawsuit because he fears he will lose custody of his children. The common myth that only a mother can provide a loving and caring environment and is the more appropriate parent to obtain custody, and that a father is just a vending machine for caring for underage children, has been heavily debated and refuted. Whether you are a mother or a father, both are individually entitled to the same rights, duties and privileges in relation to their children, as Shakespeare famously quoted: “If you stab us, we don’t bleed? If you tickle us, we do that too. ” Do not laugh? Although we as humans are prone to prejudice about custody matters because of social norms, prejudices about a father’s rights and responsibilities should be condemned. Custody issues are regulated by the Guardianship and Minors Act [Chapter 5:08]

Now let’s turn to the law for the sake of clarity.

Rights of unmarried fathers

The common law position on custody and guardianship of an illegitimate child is that all parental rights rest with the mother. Such rights can only be impaired by the biological father if they are not properly exercised by the mother. The biological father is equated with third parties with regard to the child, he has no parental authority and is not the guardian of the minor child. This position towards unmarried fathers can only be changed by the legislature.

An unmarried father cannot have custody of the child just because he is the birth father or because he supports the child or has more money than the birth mother. Proof must be provided before a court that the biological mother is not exercising her parental rights properly and that it is in the best interests of the child that the biological father is granted custody. An unmarried father has no inherent right to an illegitimate child, as granting such rights would equate his legal status with that of a spouse in a divorce situation.

light at the end of the tunnel

To some extent, there is relief in the most recent case of unmarried birth fathers Sadiqi versus Muteswa HC3971 / 19 The common law position of the birth fathers was found to be incompatible with the provisions of the
Constitution of Zimbabwe Amendment Act (No. 20) 2013 (hereinafter referred to as the constitution) in particular in contradiction to sections 19 (1)
& 19 (2) (a) as read with section
81 (1) (d) This states that the best interests of a child are of the utmost importance in all matters that affect the child and that a child has the right to parental care and to sections 56 (1) which states that all persons are equal before the law and section 56 (3) that is, no one should be discriminated against based on their status.

Removing custody of an unmarried biological father is discriminatory based on marital status, and depriving a child of a father’s right to parental care is deprived because it is considered fatherless and does not deserve parental care except for the purpose of maintenance. In all matters involving an underage child, the best interests of that child are of paramount importance. It can therefore be argued that the most important consideration that the courts should focus on is not the rights of the parents, but the best interests of the child. On the basis of such arguments, an unmarried biological father can be granted joint custody, custody or guardianship of a minor child.

Rights of married and divorced fathers

The position of married fathers is different as they have all parental rights and guardianship of their child and exercise these parental rights together with the birth mother of the child. However, as explained above, the courts will first consider what is in the best interests of the child before considering parental rights.

Conclusion

It should be noted that the Constitution supersedes any law, statute or rule, practice, custom, or conduct that is inconsistent with the provisions in Section 2 (1). A child deserves a father’s love and care, regardless of status. Undoubtedly, the trailblazers are few in search of equilibrium in the unknown waters of paternal custody, but … not for long.

“A good father is one of the most unsung, unappreciated, unnoticed and yet one of the most
valuable assets in our society “. B.Graham

The content of this article is intended to provide general guidance on the subject. You should seek advice from a professional about your particular circumstances.

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