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The issue of custody is dealt with by the Guardians
and Wards Act of 1890, under which it is a well-established
principle that the welfare of the child is paramount - i.e., the most
important thing considered by the Guardian Court when deciding custody.
No matter what customs or personal law rules the parents’
community or sect follows regarding custody, any parent who wants custody
and does not presently have custody has to seek custody from the Guardian
Court. In other words, there is never any automatic
transfer of a child’s custody to a particular parent.
Factors Considered by the Courts when Granting Custody
- The welfare of the minor is very broadly
defined and includes many diverse factors, notably:
- the age, sex and religion of the minor:
courts take into account the personal law of the father). Thewelfare
of younger children is generally regarded as being in the mother’s
custody;
- the character and capacity of the proposed guardian:
courts usually reject baseless allegations against mothers;
- the wishes, if any, of a deceased parent,
for example specified in a will;
- any existing or previous relations of the proposed
guardian with the minor’s property: courts do not look
kindly on guardians seeking custody just in order to have control over
the minor’s property. But if, for example, the minor’s property
is shared with the mother and she is otherwise a suitable guardian,
the court will regard the property relationship as an additional factor
in the mother’s favour.
- the minor’s preference if
she/he is old enough to form an intelligent preference, usually accepted
as about 9 years old.
- whether siblings would be divided:
courts prefer to keep children united and award custody of
both to either the mother OR the father.
- whether either/both parents have remarried and
there are step-children: Although the mother’s remarriage
to someone who is not the children’s close blood-relative often
means the court will not grant her custody, this rule is not strictly
followed. Although the father’s remarriage usually denies him
custody, sometimes the courts agree to grant him custody especially
when the children’s step-mother cannot or will not have her own
children.
- whether the parents live far apart: courts
sometimes do not give the mother custody because she lives very far
away from the father who is the ‘natural’ guardian. But
in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge
said modern transport had shortened distances and meant that the father
could depart from his home in the morning and return by evening.
- the child’s comfort, health, material, intellectual,
moral and spiritual welfare: this very broad category includes
the adequate and undisturbed education of the child. However, the mere
fact that the mother is economically less secure than the father, or
that she suffers from ill-health or a disability is not usually reason
enough to deny her custody because maintenance is thefather’s
responsibility irrespective of who holds custody.
- the mental and psychological development of the
minor should not be upset by a reversal of the existing status quo:
courts will take into account the likely impact of a change in guardians
and the child’s reaction to this change.
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