“The paradox…, is that even when children are construed as rights holders, it is difficult for them to assert their rights. The reasons are practical, political, and legal. Young children are completely and unavoidably dependant on those who have power over their lives (O' Donovan: 1983).”I was reminded of this ...
“The paradox…, is that even when children are construed as rights holders, it is difficult for them to assert their rights. The reasons are practical, political, and legal. Young children are completely and unavoidably dependant on those who have power over their lives (O' Donovan: 1983).”
I was reminded of this quote in this matter that came before me as an opposed application, misleadingly headed “court application for custody” when it was, as a matter of fact, an application for variation of custody.
Nonetheless, I adopted a robust view and heard the matter on the merits given the fact that it involves minor children.
The fact that children are powerless is the more reason why this court, as the upper guardian of all minor children, must stand as the last bastion in defence of the rights of children.
On 22 June 2017, this court granted a decree of divorce between the applicant and the first respondent. In that order, custody of three minor children, namely, MJ (born 12 August 2002); SJ (born 12 August 2007) and JEG (born 3 March 2011) was awarded to the first respondent with the applicant being awarded access.
In terms of the consent paper, the applicant is to be wholly responsible for the educational costs of all three minor children until such a time that each child attains his/her first degree or becomes self-supporting - whichever is sooner.
It is pertinent to note, that, of the three children, only one, namely, JEG is the biological child of the applicant and the first respondent. The other two are the biological children of the first respondent.
There is no explanation of why the two are included in the custody order given the fact that the applicant did not formally adopt the children as his own but this may have been based on the provisions of section 83 of the Children's Act [Chapter 5:06] which places liability on a step-parent to maintain a step-child.
On 24 October 2017, the third respondent was appointed curator ad litem of the three minor children.
Almost three months after this appointment, the applicant filed what he termed an application for custody of the minor children.
In his draft order, he sought to be awarded custody of all the three minor children with the first respondent exercising access.
In his affidavit, the applicant averred, that, on 21 September 2017, the first respondent “surrendered” custody of the three minor children to him as she could not cope with the day to day financial needs and care of the children.
He also averred, that, the first respondent was living in a two-roomed house and that she had no motor vehicle.
On the other hand, the applicant's stance was that he was able to provide better accommodation for the children and also ensure that they would be taken to school. MJ was actually at boarding school whilst the other two attend school in Harare.
The other reasons advanced by the applicant for custody were that the first respondent associates with persons of questionable character who smoke marijuana and one of them tried to entice MJ into sending him indecent pictures of herself; that she had expressed intentions to go and set up business in Mt Darwin; that she has not visited the children and hence has no love and affection for the children.
In response, the first respondent stated that she was opposed to the order being sought.
She explained the circumstances leading to her moving from an expensive house to a cheaper house. She stated that she went to Mt Darwin to explore business ventures so that she could supplement her income. She also expressed disquiet over the fact that her own brother, who stays with the minor children and the applicant, had previously allegedly molested MJ.
She averred that she will be able to transport the two minor children to and from school with the assistance of a taxi driver; that she has since stopped all relationships, including reporting one of her ex-boyfriends who attempted to solicit indecent pictures from M.J to the police.
The third respondent, in her capacity as a curator ad litem, prepared a report in which she stated that the first respondent was agreeable to the applicant having custody of the minor children except that she insisted that her brother moves away from the applicant's home and that one of the minor children, SJ, expressed that he wanted to stay with the first respondent.
The third respondent concluded, that, it is in the best interests of the minor children that custody be awarded to the applicant.
I took issue with this conclusion as it showed bias since the task of a curator ad litem is to assist the court in coming up with a decision relating to what is in the best interests of a child.
The report must be a dispassionate assessment and not a conclusion - see Mukundu v Chigumadzi HH818-15.
The best interests is a legal question which only the court, as upper guardian of all minor children, can determine after considering all the facts - including the report by a curator ad litem.
I also noted that the report contradicted the first respondent's own assertion that she was opposed to the relief sought.
The report of the third respondent was not helpful as it was contradictory in paragraph three, where, after concluding that the applicant has a strong bond with the minor children, it went on to state, in respect of the first respondent, that “she has proved that she had capacity to take care of them.”
Acting in terms of Rule 276, I interviewed all the minor children in chambers - in the presence of the third respondent.
The children indicated that the applicant, who is French, spends considerable time away from home in France on business. During that time, they are left in the company of a maid and the first respondent's brother. They indicated that the applicant provides for their daily needs such as food and transport to and from school. They indicated, that, at the first respondent's place of abode, they sometimes do not have adequate food and that there is 'nothing' much to do since she does not own a television set and that there is no DSTV.
The children seemed to be caught between love for the first respondent and some confusion as what is going on in their young lives and that is why the quote by O' Donovan becomes relevant.
MJ attends a standard boarding school in Chegutu. She stated that she does not have a strong relationship with her uncle but she was only told that he once molested her whilst she was still very young but that she has no memory of this alleged incident.
On probing how she feels over the fact that she stays with the applicant, who is not her biological father but a former step-father, she expressed reservations about the situation.
MJ struck me as a teenager who is fast approaching that age where she is on a path of self-discovery. She hopes to become a pilot one day.
SJ attends a Government school in Harare. SJ struck me as a young boy who is not too confident with himself and seems to be going along with the tide. He enjoys sport, especially rugby, but he did indicate that he once hurt his arm whilst playing rugby. His hand is not as it should be to the naked eye.
This fact was not mentioned in the applicant's founding affidavit and the curator's report.
SJ hopes to become a lawyer one day.
I noted that SJs school uniform was not as clean as is to be expected. His blazer showed signs of being worn out.
On the other hand, JEG was impeccably dressed. The private school that he attends does not require students to wear uniform. JEG stated that he is sometimes disciplined by both the applicant and the first respondent.
He struck me as a child who is perhaps given more by the applicant. At the age of seven, he possesses a cellphone and other creature comforts. He also struck me as a child who still needs his mother's care in his formative age.
As observed earlier, the application was brought as a fresh application for custody when it is actually an application for variation of custody.
What then is the duty of this court in cases of variation of custody?
This question was answered aptly by RUMPFF JA in Shawzin v Lawfer 1968 (4) SA 657 (AD)…, in which the learned judge commented as follows:
“In my view of the circumstances of this case, I think it necessary to make a few comments on the duty of a court, sitting as upper guardian of minor children, when it has to resolve a dispute concerning custody.
To the court, as upper guardian, the problem of custody is a somewhat singular subject, in which there is substantially one norm to be applied, namely, the predominant interests of the child.
The singularity of the subject is evidenced by a number of features.
An order of the court, as to custody and access, may, at any time, be varied by the court for good cause.
An agreement relating to custody may be made an order of the court if the court is satisfied that what has been agreed upon is in the best interests of the children, but, such order also can be varied by the court for good cause.
Also, from the procedural point of view, an application to vary an agreement is different from the ordinary application, in that the court need not consider itself bound by the contention of the parties and may, in suitable cases, notwithstanding the fact that the onus is on the applicant to show good cause, depart from the usual procedure and act mero motu in calling evidence - irrespective of the wishes of the parties.
In the result, it could be said, that, while, in form, there is an application for variation of the order of court, in substance. there is an investigation by the court, acting as upper guardian; cf Kotze v Grove 1959 (2) SA 213 (0) at p215. Also, on appeal, the court may, in an exceptional case, take cognisance of facts which are, by consent, admitted or which are unquestionable; see Goodrich v Botha and Others 1954 (2) SA 540 (AD) at p546.”
Sections 19(1) and 81(2) of the 2013 Constitution reinforce the paramouncy of the best interests of the child standard.
The test for variation of custody was well set out in Domboka v Madhamu HH179-04…,by MAKARAU J…, as follows;
“It appears to me, that, while the accepted position is that a parent seeking variation of the custody order has to show, on a balance of probabilities, that it is in the best interest of the children that the existing order be varied, in cases where the variation is sought on the basis of changed circumstances, the onus is to be discharged in a two-prong attack.
In my view, such a parent must show that it is not in the best interest of the children that they remain in the custody of the custodian parent, and, further, that it is the best interest of the children that custody is awarded to them.
It is insufficient, in my view, to merely show a change of circumstances for the worse on the part of the custodian parent.
It is not difficult to envisage a situation where, although the circumstances of the custodian parent have deteriorated from the date of the granting of the order, the court still finds that it is in the best interests of the children that they remain in the custody of the parent whose fortunes are waning.
It is the role of the court to interrogate the circumstances of both parents to establish where the best interests of the minor children lie.”
In the same case, MAKARAU J also had occasion to deal with a case in which the custodian parent had temporarily given custody to a third party (the grandparent) and she stated as follows…,:
“The fact that the respondent has given up custody of the minor children is not, however, the end of the matter.
The applicant has approached this court for an order of custody in his favour on the incorrect premise that once it is shown that the respondent has given up custody, then, he is entitled to be granted custody of the children.
The role of this court, in matters relating to the custody of minor children, is more responsible than the applicant would want it to be. This court does not sit to determine who, between the two feuding parents, is to be awarded custody of the children of the failed union.
The best interests of the parents do not enter the fray.
(See Routledge v Heinz 1988 (1) ZLR 252 where MUCHECHETERE J (as he then was) refused to vary access rights granted the applicant who had moved from Bulawayo where the children lived with their father, to Victoria Falls, a distance that she found inconvenient and expensive to travel).”
In this present case, what is to be considered is this - what has changed between the awarding of custody to the first respondent to the present day to warrant varying the custody order.
In June 2017, the applicant was very much well aware of the fact that the first respondent would require support so that she could exercise her rights of custody and that is why, in the consent order, she was awarded the sum of $800 as spousal support and the applicant also undertook to pay all educational costs of the three children until they each attain their first degree or become self-supporting whichever happens sooner.
The applicant approached the court on the mistaken belief that the 'surrender' of the children to him by the first respondent gave him a right to the minor children.
The alleged 'affidavit' of surrendering the minor children to the applicant, by the first respondent, is fraught with inconsistencies.
In paragraph three, it is stated as follows:
“It has been agreed between Alain (the applicant) and I that I had (sic) over custody of the children to him and he will retain custody of the child (yet there are three children and it is not clear which child is being referred to) until March 2017 (which date had already passed since the affidavit was signed on 21 September 2017) after which custody will be restored to me.”
There is no explanation as to why, by March 2018 (which is presumably the date of returning custody), the children had still not been returned to the first respondent by the applicant.
He took it upon himself to even 'invite' the first respondent to birthday parties of both MJ and JEG.
The first respondent's explanation was that when she attempted to take the children back, they refused on the orders of the applicant.
As a matter of fact, even at the date of the hearing, the children were still in the custody of the applicant.
I queried the applicant's legal practitioner as to whether or not her client was not coming to court with dirty hands and seek to rubber stamp his act of failing to hand back the children to the first respondent.
I however allowed her, in consideration of the fact that this case involved minor children, to present her client's case.
I also allowed the unsworn statement of the first respondent due to the same considerations and also that she was a self-actor.
A pertinent issue to note is that the applicant is not the biological father of SJ and MJ.
In terms of section 83 of the Children's Act [Chapter 5:06], the liability of a step–parent to maintain a step-child ceases in the event of divorce or judicial separation and there is no order of maintenance made in favour of the step-child.
Granted, in the consent paper there is an order relating to educational welfare of the step-children but it can never be in the best interests of the two minor children to be separated from their biological mother.
The position of the applicant is akin to that of a third party and it is only in the rarest of circumstances that custody is awarded to a third party.
I am mindful of the fact that section 80(2) of the Constitution gives women and men the same rights regarding custody, but, it could not have been the intention of the legislature to equate the rights of a biological mother with those of a former step father.
This section can only apply in relation to JEG, the biological son of the applicant and the first respondent.
In any event, the applicant's allegations against the first respondent mostly amount to a matter of flexing the purse - that he has more in terms of resources than the first respondent.
If he is so concerned with the welfare of the children, he should ensure that they are adequately provided for.
He boldly declared, in paragraph 14 of his founding affidavit, that, he has the financial means to take care of the minor children.
I note, that, in the consent order, there is no provision for monetary maintenance for the minor children, but, that does not take away the legal obligation of the applicant to maintain the minor children in addition to the payment of all educational costs.
The first respondent is equally under such an obligation and the law relating to maintenance makes it clear that each party must contribute according to their own means - see Dawson v Ushamba HH335-14.
The first respondent cannot be faulted for travelling to Mt Darwin to scout for business opportunities.
Given the fact that the applicant travels to France many times a year, and sometimes for months on end, as confirmed by the minor children when I interviewed them, it cannot be said that a maid and the first respondent's brother can temporarily replace the first respondent as custodians of the minor children.
The minor children also stated, that, the applicant is in a relationship with another woman who often puts up at the applicant's place. This means that M.J and SJ are also often exposed to two adults who are not their biological parents.
JEG is also often exposed to a woman who is not his biological mother during the periods when the applicant is away on his frequent travels to France.
JEG is still a young boy aged seven and he clearly requires to be with his mother, the first respondent. Although I am aware that some jurisdictions have moved from the tender years doctrine to the primary caretaker test, in our jurisdiction, it is still recognised, that, in general, custody of a young child should be with the mother - see Goba v Muradzikwa 1992 (1) ZLR 212 (SC) in which GUBBAY CJ had this to say…,:
“I need only refer to the sagacious words of BROOME J (as he then was) in the celebrated case of Dunsterville v Dunsterville 1946 NPD 594 at 597:
'…, it is often said, that, the best person to look after young children is their mother. So far as mere physical well-being is concerned, I do not think this is a matter of any importance. Few mothers are capable of attending to the bodily needs of their offspring as efficiently as an institution-trained nurse.
But, that is not the end of the matter.
Experience goes to show, that, a child needs both a father and a mother, and that, if he grows up without either, he will, to some extent, be psychologically handicapped. But, the maternal link is forged earlier in the child's life than the paternal, and, if not forged early, may never be forged at all.
The psychological need of a father, on the other hand, only arises later.
It seems to me, that, if the father is awarded the custody of these young children they will, in all probability, notwithstanding the loving care which they will undoubtedly receive from their paternal grandmother, grow up as motherless children, with all the attendant psychological disadvantages.
If, on the other hand, the mother is awarded their custody, at any rate during their years of infancy, they will not necessarily grow up as fatherless children, for the relationship between a father and his young children is never one of continuous intimacy, but is necessarily intermittent.
The children will realise that they have a father, notwithstanding that they do not see him every day: and when they reach the age at which a father becomes an important factor in their lives, there will be nothing to hinder the forging of the paternal link.'”
This is always in the context of the best interests of the child standard as each case is considered on its own merits.
I am not persuaded that it will be in the best interests of the children if the custody is to be varied in favour of the applicant. The applicant has failed to show any substantial changed circumstances that would warrant variation of custody.
In the result, and for the reasons stated above, it is ordered as follows:
(a) The application be and is hereby dismissed with costs.
(b) The applicant is ordered to forthwith return the minor children to the custody of the first respondent, and, in the event that he fails to do so within seven days of being served with a copy of this order, the Sheriff of the High Court be and is hereby empowered to remove the minor children from the custody of the applicant and restore custody to the first respondent.
