CUSTODY
Section
1(q) of the Children Act as amended defines a custodian as a person in whose
care a child is physically placed. Custody concerns the legal rules governing
the right of children regarding who to live with.
Any harm that the
child has suffered or is likely to suffer or is at the risk of suffering; and
where relevant, the capacity of the child's parents, guardian or any other
person involved in the Care of the child, and in meeting the needs of the
child.
In Rwabuhemba Tim Musinguzi v Harriet Kamakume
Court of Appeal Civil Application No.142 Of 2009, Held; Parents have a fundamental right to care and bring up their
children. This is a constitutional right. Of course it is not considered in
isolation. The welfare of the child is a consideration to be taken into
account, and at times may be the paramount consideration. A parent can only be
denied the right to care for and raise her children when it is clear and has
been determined by a competent authority, in accordance with law, that it is
the best interest of the child that the child be separated from the parent
For one to get granted
custody there are a number of factors that have to be considered.
Welfare of the child
S.73
(3) of the Act, the court shall primarily consider the welfare of the
child. Section 3 of the children Act, as amended provides that the guiding
principle is the child’s welfare which is paramount. It provides that the
welfare principle shall be the guiding principle in making any decision based
on this Act.
In Hassan Mariam Mohammed (1977) HCB 43;
it was held that the welfare of the children is a paramount consideration and
the matter of custody is best determined after hearing both parties and custody
should not be granted until both parties have been heard.
Children of tender years
It is presumed that children of tender years
that is 7years and below should live with their mother as opposed to the
father.
Teopista
Kayongo v Richard Sekiziyivu (1978) HCB 240. It was held that as
concerns children of tender years, such children should normally stay with
their mother unless she is not a fit and proper person. And where the custody
of the children is taken away from their mother, the mother should be free to
visit her children as often as she pleases.
Better financial status
Hofman v Hofman (1970) E.A. 100 court held that
although the father’s superior financial position over the mother was
irrelevant in custody cases, it could not be ignored, if it could be proved
that the father could use his superior financial position to cater for the
welfare of the child better than the mother whose financial inferiority would
stand in her way, the overriding factor is the interests of the child and if
the father could use them to enhance the welfare of the child, it could be
taken into consideration.
Conduct of the parties
Nyakairu v Nyakairu court held that in
applying the welfare principle court had to consider other ancillary
circumstances e.g. such matters as; who of the spouse was to blame for the
breakup of the marriage, who of the spouses was more financially equipped to
look better after the interests of the children and which spouse could provide
a more comfortable home. Court held that immorality on the father was not
sufficient justification for interfering with the common law right of custody
of children unless such immorality was very flagrant or was coupled with other
habits injurious to the children.
Variation of custody.
According to Section 85of the Act, where the court
is satisfied on information from a parent
or an official of a local government council that the parent who has
custody of the child is wilfully neglecting or mistreating the child, custody
shall be granted to the other parent[CT1] .
The Queen v Gungail (1893) 2 QB 233 at 243,
the court is placed in a position of reason. In its prerogative to act as a
supreme parent of the children and must exercise its jurisdiction in a manner
which a wise affectionate and careful parent would act for the welfare of the
child
Custody maybe joint or
sole following Section 73(1), the
court may on the application of a sole applicant or joint applicants, grant
custody of a child on such conditions as may be determined by the court. Sec.73 (2) Provides that the court may
at any time revoke the grant of custody to one person and make the grant to
another person, institute or organization. Sec.73
(3) of the Act provides that the in reaching its decision under sub section
(1) and (2), the court shall primarily consider the welfare of the child.
Procedure:
Rule 19(3) of the Children
(Family and Children Court) Rules provides that an application for a custody
order shall be specified in Form 1 in the schedule to the rules and rule 19(1)
provides that the application shall be supported by an affidavit, and any
reports or documents to be relied upon shall be attached to the application.
Interim Custody.
Section
73A of the Children Act as amended provides for interim custody order. 73(1) a probation and social welfare
officer, mother father or guardian of a child may apply to the family and
children court for an interim custody order pending the determination of
custody of the child by court. 73(2) of
the Children Act as amended provides that the application for an interim
custody shall be supported by affidavit of the applicant. 73(3) of the Children Act as amended provides that the court may
issue an interim custody order may, where the court is satisfied that,
(a) The child is suffering
or likely to suffer harm if the order for the interim custody is not issued.
(b) The order is in the
best interest of the child.
(c) An interim custody
order may, where appropriate, contain any direction, prohibition or award.
Custody by Agreement.
S.
73B of the Children Act as amended provides for custody
by agreement.
73B
(1) of the Children Act as amended explains that the parents of a child may
enter into a written agreement to determine which of them shall have custody of
the child. 73B(2) of the Children Act as
amended provided that court may recognise an agreement made between the
parents of a child giving the custody of the child to one of the parents,
except where court finds that enforcing the agreement would not be in the best
interest of the child.
73B
(3) court shall only recognise an agreement under subsection (1) if it is satisfied that there was no duress or fraud
involved in making the agreement.
No comments:
Post a Comment