What is child custody?

  • Custody of a child means the physical stay of a child with either the mother or father under one household by order of court or agreement between parents.
  • In most instances the child custody rights arise when parents are separated, divorced or arose from wedlock. In special cases the issue of child custody might arise where both parents pass on and there is need to take custody of the children.

Who has the right to custody of a child?

  • Both parents have the right to custody of the child. However, the law automatically grants the right to the mother of child to have custody of children especially where they are minors.
  • In absence of both parents any person who has an interest in the care, well-being or development of a child, may apply for the right to custody of such a child in the Children’s Court.

What will the court consider when granting an order in respect of custody?

  • The best interests of the child.
  • The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
  • The nature of the personal relationship between the child and the parent.
  • The degree of commitment either parent has shown towards the child.
  • The extent to which the either parent has contributed towards the expenses in connection with the birth and maintenance of the child.
  • The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from either parent or brothers/sisters with whom the child has been living.
  • Any family violence involving the child or a family member of the child.
  • The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
  • Any disability that a child may have or any chronic illness from which a child is suffering from.

What is child access?

  • Child access refers to maintaining a personal relationship with a child by either parent who doesn’t have custody of the child/children.
  • Child access entitles either parent or relative to see, spend time with (visit or be visited) or communicate (by telephone or any form of electronic communication) with a child/children who does not live with either parent
  • The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to access to a child from the court, provided that the access would serve in the child’s best interests.

Does a parent who doesn’t have custody of the child have to pay maintenance?

  • Yes, it does not matter whether a parent has custody or access of the child either parent still has a legal responsibility to financially support the child/children.

May a court order in respect of custody or access be changed or cancelled?

  • Yes, application for change or cancellation must be made at the children court for changing or cancellation of the court order.
  • The court must be satisfied that the changing or cancellation of the court order will be in the best interests of the child.

What grounds can you give for a court to grant such change or cancellation?

  • The parent with custody of the child is of unsound mind or mentally unstable
  • The parent or person with custody of the child is not of good character
  • The environment where the parent with the custody of the child is domicile is not favourable to the child

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