Who is granted custody of a child in divorce proceedings?

By: Hasfa Namulindwa

The word custody in the legal arena has diverse meanings; when somebody has been put into custody, it is usually because he or she has committed some wrong or a crime and they are detained or imprisoned, awaiting further legal proceedings.

The case of custody of children is quite different. Custody with regard to children deals with the issue of, who has the right to live with and make important decisions affecting a child? This is the person whom the Family and Children Court has assessed to be in the best position to offer love, care, protection and supervision of the child. In other words that person takes on full responsibility for the child’s needs such as food, clothing, medical care, instruction among others.

Upon a decree of divorce, the Court makes orders, one of which is, custody of the issues of the marriage (if any). By virtue of the fact that the marriage has been dissolved by divorce, the parents will no longer live together. The question, then is, what is to become of the innocent souls who may not even be aware that there have been misunderstandings between their parents who will, henceforth, not live together anymore?

When parties petition for divorce, both of them may desire custody of the children but since they do not want to live together any more, only one of them can be granted the said custody. The parties may obtain joint custody which can be joint physical custody, joint legal custody, or a combination of both.

Under the 1995 Constitution of the Republic of Uganda (as amended), a child is a person below the age of 18 years. Every child is entitled to live with his or her parents or guardians, unless it is not in the best interests of the child, in which case, the best substitute care available is provided for the child.

Whenever, an issue arises as to the custody of a child(ren), the Court bases its’ decision as to who to grant custody to, whether mummy, daddy, uncle, grandfather, grandmother or aunt, depending on the following fundamental factors:

Age: In as much as a person remains a child in the eyes of his or her parent or guardian regardless of their age, in children’s custody, the law is concerned with persons below the age of eighteen. Individuals above eighteen are presumed to be adults and in a position to make their own decisions with regard to where they shall live.

Welfare principle: For persons below eighteen years, the decision to grant custody, whether to the mother or father is based on the welfare principle. According to the Children’s Act Cap 59 (as amended), the welfare principle is the guiding principle and paramount consideration in making decisions concerning custody of children and is all-encompassing. It includes but is not limited to material welfare, both in the sense of sufficiency of resources to provide a pleasant home and a comfortable state of living and in the true sense of adequacy of care to ensure good health and personal dignity and pride of the child. The Court examines which parent or relative is in a position to provide a pleasant home to ensure the child’s welfare.

Basic needs: The ability to provide the essentials needs of a child such as shelter, food, clothing, education and medical care is not enough. Physical protection, moral, emotional support are also very vital to the Courts in determining welfare. Is mummy or daddy available to discipline, guide, advise, and mentor the child, in addition to the material provisions?

Therefore, parents and relatives who are contemplating the idea of obtaining custody of a child need to examine themselves and answer the following questions:

• What are the ascertainable wishes and feelings of the child considered in light of his or her particular age of his/her understanding? Who would that child prefer to reside with?

• Do you meet the child’s physical, emotional and educational needs?

• Are you cognizant of the child’s age, sex, background and any other circumstances relevant in the matter, as it relates to you being granted custody of the child? For instance, are you in position to handle the needs of a given gender at a material age?

• Do you observe the child’s right to leisure which is not morally harmful and the right to participate in sports and positive cultural and artistic activities?

(d) Are you aware of the likely effects of any changes in the child’s circumstances?

(f) Do you foresee any harm that the child has suffered or is at the risk of suffering?

(g) Where relevant, the Court will consider your capacity in meeting the needs of the child.

It bears repeating that the central factor for consideration by the Court is the welfare of the child. But the welfare of the child is not measured by money only, it is the ability to raise up a well-balanced, well-groomed citizen of the society. We have seen instances where the father is considerably wealthy, but custody of the children is granted to the mother and the father is ordered to pay maintenance to the mother.

There are also instances where custody is granted to a third party, like a grandparent, where both the father and mother are incapable of taking good care of the children or where it is not in the best interest of the children to stay with his or her parents. In one case, custody of the child was granted to the grandmother because the father was a boda boda (motorcycle) rider who would return home at 2.00 am in the night and the mother was a prostitute who would lock the child inside the house alone at night.

During a divorce, although the parties may not be on the best of terms, it is imperative that each parent conscientiously presents accurate facts of his or her capabilities regarding custody and allow the Court to make an accurate assessment for the benefit the child(ren). If one parent is incapable of raising a child in spite of his or her best efforts, why mislead the Court to grant that parent custody, to the detriment of the child? Parents or anyone involved in a custody battle should seek the services of an attorney to assist in obtaining their child’s custody or in the alternative, to get the most possible involvement in their child’s upbringing. No parent should miss the chance to raise their children or to be involved in their upbringing simply because they are not married, or because they are separated or divorced or do not have enough resources.

We should note further that the parent who has not been granted custody does not lose their rights to engage with the children. In many cases, the Court will grant visiting rights to the other parent. The Court may also order shared or joint physical custody, where the child resides with one parent during the school term and with the other parent during holidays. This is because both parents have a right to live with their children and bring them up. This also gives the children a chance to live with and get to know each of their parents.

The Court may also consider the rights set out in the United Nations Convention on the Rights of the Child and the Organization for African Unity Charter on the Rights and Welfare of the African Child with appropriate modifications to suit the circumstances in Uganda, before granting custody.

Thus, the Court will examine all the circumstances surrounding the child before determining who will take custody of the child.

For more information on custody of minors in divorce proceedings, please contact Hasfa.

This Family Law article provides general information only. It is not intended to provide advice with respect to any specific set of facts, nor is it intended to advise on all developments in the law.