‘It’s discrimination’ – Zim court approves joint custody of ‘illegitimate’ Children

A Zimbabwe High Court has ruled that parents of children born out of wedlock can now exercise joint custody. The constitutional rights granted to children alters the common law position that grants sole caregiving to the mother.

Under the common law, the mother had sole parental powers while the father was made to pay child maintenance. It meant that hitherto mothers could decide to omit fathers from the lives of their children and single-handedly make decisions concerning the children’s welfare.

The court ruled that both parents can lawfully enjoy joint guardianship and custody of the child and they should be considered equal parents.

Justice Happias Zhou described the common law provision as discriminative. He 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,” Justice Zhou said.

In the situation of a deadlock, he ruled that either can approach the court for recourse. According to Zhou, 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 channeling 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.

The country‘s landmark judgment ends a long-drawn custody dispute between businessman Mr Frank Buyanga and his ex-girlfriend, Ms Chantelle Muteswa which started in the Civil Court, but ended up at the High Court.

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.