By Vimbai Tavaziva
Where can a man go to compel his ex-wife to let him see his minor children, aged 11 and 9? If the man has not seen the children in months because the mother denies him access yet he pays maintenance and the woman is poisoning the children against him, what can he do?
When parents are separated or divorced, the parent who is given the right to live with the children has “custody” of the children while the parent who does not live with the children may be given rights of “access.” The right of access gives the parent who does not live with the children the right to visit the children, to stay with them for an agreed period of time and to communicate with the children.
In some cases, the parent who does not live with the children may be denied access to the children by a court of law if the court thinks that it would not be in the best interests of the children. This may include cases where the parent used to abuse the children or the child has stated that they do not want to see the parent.
In cases when parents are separated and the children are in the mother’s custody, the mother should not, without good reason, deny the father access to his children.
If the mother unreasonably denies the father access to his children, the father of the children can apply for access at the Magistrates Court. This application can persuade the Court to give an order compelling the mother of the children to grant him access to his children.
The Magistrates Court in this instance sits as a Children’s Court to determine what is best for the child.
The father can also apply for custody of the children in the High Court if he feels it is in the best interests of the children to stay with him. This is however only possible if he was married in terms of the civil marriage (Chapter 5:11) before he divorced.
If he was married in terms of the registered customary law marriage (Chapter 5:07), the father can apply to the Magistrates Court for custody of his children as well. The High Court is the guardian of all minors in Zimbabwe and as such it has the powers to grant a father access to his children.
If he was in an unregistered customary law union, whether his name is on the children’s birth certificates or not, the father can seek an order for access. The court will decide with the child’s best interests as the key consideration.
If he was never married to the mother and his name is on the child’s birth certificate, the man will be presumed to be the father of the child and customary law will apply. He can seek an order for access in the same manner that a parent in an unregistered customary law union would.
If he was never married to the mother and his name is not on the child’s birth certificate he has no inherent rights at all; the father of an illegitimate child has no inherent rights of access to his child.
However, because the new Constitution provides that the best interests of the child shall be the key consideration. It seems possible that the Courts could declare that a father be given the right to access. Previously the father could only be given access if he could prove that there was improper exercise of the mother’s parental rights just like any other person, with no special rights to the child.
Guardianship of Minors Act: CHAPTER 5:08 Section 5(3) (c)
Children’s Court Act : Chapter 5:06 Section 3(2)
Magistrates Court Act : Chapter 7:10Section 11 (b) (v)