Tag: child rights

Variation of Maintenance

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DID YOU KNOW…..That a maintenance order can be varied?

In the event that the circumstances have changed after obtaining an order for such from a competent Court, one can make an application for variation of the order. The circumstances can include the child’s age as well as changed social and economic realities amongst other factors. A maintenance order can be varied either upwards or downwards.

In the case of Hora v Tafamba it was held that the role of a Magistrate in maintenance cases is to;

“Generally, the duty of a magistrate in a maintenance application, more particularly where the parties are unrepresented, is that of an investigative magistrate. He is not merely an umpire in a dispute between two sides. He is the upper guardian of the most important party, the child. He must therefore seek out the relevant facts. He must ask whatever questions are necessary to enable him to give an adequate judgment. He must aim to give the child reasonable financial support without placing an unfair burden on either parent.”

Where circumstances have changed the court will take into account the extent of the change as well as the needs of the minor child/ren. It is important that the applicant in a case for upward variation be in a position to justify the amount that they are claiming as they may at times be called upon to provide a breakdown of the sum that they are claiming from the respondent in the matter.

As with all matters involving children, the guiding principle is that the best interests of the child are of paramount importance. Whatever is decided should be in line with this legal principle.

This is for general information purposes only. Seek legal advice from your Lawyer.

Best Interests of the Child

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BEST INTERESTS OF THE CHILD

This is a legal concept that has been adhered to by the courts when it comes to matters that involve minors such as custody, access, or guardianship. The Courts in determining matters pertaining to children are guided by the principle of the best interests of the minor child. The Constitution provides;

Section 19: Children

  • The State  must  adopt  policies  and  measures  to  ensure  that  in  matters  relating  to children, the best interests of the children concerned are paramount.

Section 81: Rights of children

  • A child’s best interests are paramount in every matter concerning the chil

BEST INTERESTS OF THE CHILD ENTAILS

Some of the factors considered by the Courts are:

  1. The relationship between the parent and the child paying attention to the level of emotional attachment and compatibility (love and affection between child and parent).
  2. The parent’s capacity for interaction with the child, as well as their awareness of, sensitivity to, and comprehension of the child’s feelings.
  3. The parent’s character, physical condition, and mental health condition.
  4. The capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires.
  5. The stability, or lack thereof, of the child’s present surroundings in light of the merits of upholding the status quo.
  6. The gender and age of the child/ren.
  7. The merits or lack thereof of keeping siblings together.
  8. The parent’s ability to give the child guidance as and when such is needed.
  9. The parent’s ability to provide for and take care of the child/ren.
  10. The ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development.
  11. The child’s preference (parental preference), if the court is satisfied that in the particular circumstances the child’s preference should be taken into consideration.

These factors above are not exhaustive and were listed to give the reader some insight into what the Courts take into consideration when making their determinations.

This article is for general information purposes. Seek legal advice from a Lawyer.

 

The plight of the father of an out of wedlock child

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The plight of the father of an out of wedlock child

I pay maintenance yet l am denied other rights over my child, like custody and access among others.

The position of the law in Zimbabwe is why elevate the legal status of an illegitimate father to that of a spouse in a divorce situation?

The rights of access, custody and guardianship of a child born out of wedlock are vested in the mother of the child. The father has no such rights, “the legal position is that in Zimbabwe custody rights in relation to a child born out of wedlock vest in the mother of the child, the father of such child is equated to any third party and as such the custody rights that vest in the mother can only be interfered with if the mother is not exercising such rights properly”.

Muchechetere in Cruth v Manuel expounded that, It therefore follows, in my view, that a father of a child born out of wedlock cannot come to court and simply allege that because he is the father of the child, or he is richer than the mother, or he pays maintenance etc, it is in the interests of the child that the rights of the mother should be interfered with.” The learned judge further expounded that it would be elevating the legal status of an illegitimate father to that of a spouse in a divorce situation and negating the accepted principle of law that he has no inherent right in the child born out of wedlock.”

Does this position help in the child’s development? Is it in the best interests of the child?

Sonia Fashi