1. custody

2. INTRODUCTION What is custody Modes of application
Courts powers in making custody orders
Who is the guardian
How is a guardian appointed?

3. Modes of application
The court has got power to make an order for custody under:
The matrimonial causes act 2007, s 72
S15 of the Affiliation and maintenance provisions act.
Custody of an illegitimate child Legitimacy act s14 see also s15 of Affiliation and maintenance provisions act upon making an affiliation order.

4. Custody Matrimonial causes act s72
Under s72 the court may make a custody order as it thinks fit in relation to a child below the age of 25:
In any proceedings for divorce, nullity of marriage or judicial separation, before or on granting a decree or any time after, before or after the decree is made absolute
Where the proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after dismissal.

5. Custody: affiliation and maintenance act
S 15, where the court makes a maintenance order in respect of a child (below 18) it may also make an order as it thinks fit with respect to the custody of the child and right of access of either parent. The order will only last for the duration of maintenance order.
The court can make a maintenance order in relation to:
Upon making an affiliation order
Any party to the marriage can apply for a maintenance order on the ground that the other party to the marriage has failed to provide or to make a proper contribution towards reasonable maintenance for a marital child
The court may make a maintenance order in respect of a marital child on granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or any time thereafter.

6. Custody: illegitimate child
See s14 of the Legitimacy act
14. (1) The High Court may, upon the application of either parent of an illegitimate infant, make such order as it may think fit relating to the custody of such infant and the right of access thereto of either parent. High Court may make orders as to custody of illegitimate children  
(2) Where, upon the hearing of an application under this section, the custody of an illegitimate infant is in question, the Court, in deciding that question, shall regard the welfare of such infant as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother, or the claim of the mother is superior to that of the father.

7. Best interest of the child
As was outlined historically children had no rights apart from the parental obligation to maintain a child no adult had responsibilities or duties towards children.
Previously in considering matters dealing with children, the welfare of the child was only but one consideration that the court was to have regard to.
However now with the coming into force and ratification of the CRC, the law has identified that children have rights and that this should be the paramount consideration in cases of custody.

8. The best interest of the child is the overriding consideration
Under article 3 of the CRC it states ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be the primary consideration.’
In relation to custody applications Zambia has followed though see s75 of the MCA ‘the best interest of the child shall be the paramount consideration’
See also s15 of the Maintenance and affiliation provisions act. As well as s14 legitimacy act.
It is stated that the court shall have regard to the welfare of the child as the paramount consideration and shall not take into account whether from any other point of view the claim of the father in respect of custody is superior to that of the mother or vice versa.

9. Best interest of the child: what will the court have regard to
CA 1989 checklist: this provides a guideline for the court in considering what will be the best interest of the child
The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
His physical, emotional and educational needs;
The likely effect on him of any change in his circumstances
His age, sex, background and any characteristics of his which the court considers relevant
Any harm which he has suffered or is at risk of suffering
How capable each of his parents and any other persons in relation to whom the court considers the question to be relevant, is of meeting his needs.

10. The ascertainable wishes of the child
This is in line with the CRC where the convention requires that due weight is given to the views of the child according to their age and maturity
Williamson v Williamson (1986): the court took into consideration that the children (aged 14 and 15) did not wish to live with their father, rather they wanted to live with their mother. They voted with their feet i.e. Arriving at the mother’s house.
Re P (a minor) (education) 1992: in this case a 14 year old boy did not want to attend Stowe school but wanted to go to a local secondary school. The CA stated
‘we are dealing with the welfare of a 14 year old boy. The courts over the last few years have become increasingly aware of the importance of listening to the views of older children and taking into account what children say, not necessarily agreeing with what they want, nor indeed doing what they want, but paying respect to older children who are of an age and the maturity to make their minds up as to what they think is best for them, bearing in mind that older children very often have an appreciation of their own situation which is worthy of consideration by and the respect of the adults and particularly including the courts.’

11. Physical, educational and emotional needs
By physical needs this would include accommodation, food and other material provisions and resources and if disabled the physical provisions and environment available to him or her. Where the matrimonial home is adapted to take into consideration the needs of a mentally or physically disabled child the court is likely to order that the child remains in the matrimonial home.
Education needs would require that a child has consistency in relation to their education, the court will also look at the proximity of the home to the school
Emotional needs refers to issues of parenting and having enough time to raise the children. The courts still consider that a child’s emotional needs are served best by the mother i.e. The mother is best principle.’
RE A (a minor) (1991) and Re H (a minor) (1990) the court stated ‘it is not a principle but a matter of observation of human nature in the case of the upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother for practical and emotional reasons is usually the right person to bring up her children.
Another consideration is the attachment of siblings, the court considers it undesirable to separate brothers and sisters. C v S ‘It is not usually advisable to separate siblings who are close in age and obviously allied with one another.

12. The likely effect on him of change in circumstances: the need for consistency
The court are normally in favour of status quo, it is considered that children develop better where there is some sort of continuity of care with the person who was providing care before the application was made.
Status quo goes beyond care to include continuity in schooling and socialisations of the child.

13. The age, sex, background and any other characteristic of his which the court considers relevant
Background embraces things such as culture, class, ethnicity and religion.

14. Any harm which the child has suffered or is at risk of suffering
This means ill-treatment or the impairment of health or development in the very broad sense. This may include one spouse being violent to the mother (Re M (a minor(contract: conditions) it might involve a father giving wrong dose of medicine possibly because of difficulties in appreciating what the label stated (Re B Children) (2000)

15. How capable each of his parents and other person in relation to whom the court considers the question to be relevant is of meeting his needs
This relates to the standard of care, material circumstances and geographical location, the character of new partners and the child’s relationship with them. However the court does consider that ‘affluence and happiness are not necessarily synonymous’. In any event the court is capable of making an order as to maintenance in the favour of one of the parties having custody.

16. Applying the best interest principle
The court is likely to order that the parent who is likely to secure the best interest of the child to have the custody and will grant access to the other party, who will still have a say in the upbringing of the child. The court can also order the party with the means to provide maintenance and accommodation for the child if he or she is not given custody. See s75(4) MCA
In matters that are not acrimonious the court may grant joint custody.

17. Can the court grant custody to a person other than a parent of the child
In limited circumstances the court may grant custody to a person not being a parent of the child in cases where it considers that the parents of the child are not fit to have custody or where the parents are dead or have become of unsound mind or is serving a term of imprisonment see s15 of the Affiliation and maintenance provisions act, see also s72(3).
See also s73 of the MCA it grants general powers to the court to make an order where there are exceptional circumstances making it desirable that the child should be under the supervision of an independent person,

18. Declaration of unfitness for custody
The court has got the power upon making an affiliation order, maintenance order or granting decree of divorce or judicial separation to declare a party as unfit to have custody of the child. See s15 Affiliation and Maintenance order act as well as s72(3) MCA

19. Guardianship
This term includes parents in a strict sense, however this term is reserved for cases where parental responsibility is acquired as opposed to automatic.
Once a guardian is appointed most rights and duties of a parent will vest in the guardian.

20. Appointment of a guardian
A guardian can be appointed by:
Parents under thier will or by deed: a valid appointment must be in writing and signed by the person making it. A parent with no custody of a child loses the authority to appoint a guardian.
The court, i.e. Court order: where parents have not done so or where the person appointed by the parents refuse to take up guardianship.
The effect of the appointment is to place guardians in the same legal position as parents with parental responsibility.
A guardian has a right to consent to or withdraw consent with respect to an application for adoption.
A guardian may not be appointed for a child who has attained the age of majority

21. Termination of guardianship
Guardianship terminates under the following :
Death of the child
Child marries
Death of guardian
Court may remove a guardian: whenever the welfare of the child so demands and this may be due to the actual or threatened misconduct of the guardian.