Fathers of children born out of wedlock granted joint custody in landmark judgement

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HARARE – Fathers must have equal access to their children born out of wedlock as the mothers, the High Court has ruled in a landmark judgement.

The common law rule that gives the mother of a child born out of wedlock sole guardianship and sole custody of a minor child is unconstitutional, Justice Happious Zhou ruled.

Justice Zhou was delivering judgement in an application brought by millionaire property tycoon Frank Buyanga, demanding equal access to his five-year-old son in an application opposed by his ex-girlfriend, Chantelle Muteswa.

“The applicant (Buyanga) be and is hereby granted, together with the respondent (Muteswa), joint guardianship and joint custody of Daniel Alexander Sadiqi, born 14 August, 2014,” Justice Zhou said in a judgement delivered on Thursday.

“The applicant and respondent shall exercise their rights of guardianship in consultation with each other and if a decision of either parent on any matter relating to guardianship is incompatible with the other parent’s wishes and likely to affect the health, life and morals of the child… either party may apply to a judge of the High Court in Chambers for a determination of the course which is in the best interests of the minor child.”

Advocate Thabani Mpofu, representing Buyanga, said the judgement was “quite a significant one in our jurisprudence.”

He told ZimLive: “For children, this judgement means that their best interests are going to be taken into account and the circumstances of their birth have become irrelevant.

“For fathers, this judgement means – and it is groundbreaking in that regard – that all the fathers are now entitled as a matter of law to a parental relationship with their children. They can ask for sole or joint custody, and indeed guardianship, without having to establish exceptional circumstances.

“This is a very progressive judgement that is constitutionally compliant, and one which has taken our law from the clutches of its antiquated historical setting and has made it more responsive to the felt necessities of the time.”

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