Custody and guardianship are legal roles taken on by one or both parents in cases of divorce or separation. The custodian has the right to stay with the child and control their day-to-day life, education, church or religion, and the people they associate with. The guardian is responsible for administering the child’s business affairs, such as their finances and property. Generally, the custodian is the mother, and the guardian is the father, but the roles can be reversed if the situation calls for it. In cases of death, custody is transferred to the surviving parent. If both parents die, relatives may apply to the court for guardianship. Both parents have the right to reasonable access to their children. The custodian may take the child out of the country with the guardian’s permission, or if they have sole guardianship. In the event of death, the guardian may designate a new guardian in their will.
Q: So what do custody and guardianship entail?
A: When parents separate, one walks away with “Custody” and the other one walks away with “Guardianship”.
The mother takes on the role of custodian and this role involves the right to stay with the child, control the child’s day-to-day life, the right to decide the child’s education or training, and the right to decide which church or religion the child is exposed to. The right to determine who the child can associate with. However, the mother must exercise her custody rights in consultation with the father. For example in situations where the mother intends to relocate with the child to another country or in situations of surgeries.
What about guardianship?
Guardianship is the primary role of the Father. The “Pater” in Latin. This role is limited to administering the business affairs of the child if any. To invest the child’s money. To govern the child’s property. To enter into contracts on behalf of the child. To represent and assist the child in legal or court proceedings.
Q: Who has the right to stay with the kids after divorce?
A: Whenever parents separate or if they were never married, the custodian of first preference is the mother. Custody can only be taken away from the mother if the child reaches the age of 18 and decides to stay with the father. Or, where the High Court has directed that custody be taken away from the mother.
Q: Can I as the father stay with my kids after the divorce?
A: The presumption at law is that mothers are better placed to nurture children who are under 18 years. Therefore, the father has no right to deprive the mother of the custody of the children as long as he has not been granted “sole guardianship over the child”
The law is not blind to the fact that certain mothers are not “fit and proper” for the role of custodian. To this end the law allows fathers to make applications at the High Court to declare the mother a person who is not fit and proper to be in the custody of the children.
For example, the Court will find that the mother is not fit for the role of custodian if it is shown to the Court that the mother has abandoned her duty of providing care and affection to the children. Such scenarios are usually present, where the mother remarries and relegates care of the children to someone else and spends unusual amounts of time without the children.
If the Court is satisfied that the mother is failing in her duty as the custodian it will then order that the father be given sole custody of the children.
Q: Who stays with my kids after I die?
A: Where one of the parents dies, the surviving parent becomes the custodian. So if the mother of a child passes on, custody passes on to the father. This is the situation not considering that the parents were not married or never stayed with each other as a family. Some Zimbabweans exercise a cultural practice that if the father did not pay Lobola he has no right to stay with the children even if the mother passes on. This is not lawful nor does it serve the best interests of the child.
If the mother had “sole guardianship” over the child, she may write in her will that she intends a particular person to take her role of guardianship over the child if she dies. Sole guardianship is a situation where one parent is empowered by a court order to act without consulting the other parent.
Or if it’s the father who is staying with the child (on the basis that he has sole guardianship over the child), he may also write in his will the name of the person whom he wishes to be the guardian of the child after he dies.
Q: When one of the parents dies?
In situations where the mother was the custodian and passes on the custody does not pass to the relatives of the mother, it reverts to the father if he is still alive. Where both the father and the mother are deceased any of the close relatives from the Father’s or Mother’s side can apply for guardianship at the High Court. They then take on the role of the parents.
Q: If I separate from my kids’ mum will I still be able to see my kids?
A: Without any doubt, you will be able to see your kids. However, you only have a right to reasonable access. Reasonable access is different from the kind of access you would have if you were living as a unitary family.
If the mother is denying reasonable access you can make an application to the Children’s Court for the right to have access to the children.
Examples of situations where reasonable access is having the kids stay with you on alternating holidays with the mother.
Q: What happens when my ex-spouse wants to take the child outside the country?
A: As mentioned before, the custodian parent is the one who has the right to be with the child wherever he/she will be at that time.
However, when it comes to removing the child from Zimbabwe the mother must seek the consent of the father (in the form of an affidavit that specifies that he is not opposed to the removal)
The father can only oppose the relocation if he is of the considered view that it does not serve the child’s best interests to relocate. To prevent the removal of the child from Zimbabwe the Father can make an urgent chamber application to block the removal.
If the mother is of the view that it is in the best interests of the child to relocate but the father is refusing to issue consent, the mother can also make an urgent chamber application to the High Court which will then direct the parties to do what it deems to serve the child’s best interests in the circumstances.
A parent can only make the relocation without seeking the consent of the other parent only if they have been granted “sole guardianship” over the child. Sole guardianship is acquired after an application has been made to the High Court. Sole Guardianship is when one parent is allowed to make decisions about the child without consulting the other parent because it is in the best interests of the child to do so. An example of such a situation is when the other parent neglects or is uninterested in the child’s life.
Once sole guardianship is granted to one parent it will not revert to the other parent even upon the death of the sole guardian. The parent who has sole guardianship may state in his/her will that he/she intends a certain person to take care of the minor in the event of their death.
The author of this piece is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share basic legal information with non-lawyers. To book a consultation or to seek clarity contact the writer on 0783475020 or at simonflemming1@gmail.com
The Legal Digest 