Custody and maintenance of children
ISSUES of custody and maintenance of children form very important indicators of the quality of the child- parent relationship, which to a great extent determine the status of children. Within this framework fall issues such as guardianship and custody of children; divorce and separation of parents. The legislation pertaining to the custody and maintenance of children forms the basis of understanding the qualities of children-parent relationships, particularly in the context of a family where there is both a mother and a father. The Primary Courts Act lays down that, “In any case relating to the custody of the children the interests of the children concerned shall be the paramount consideration, irrespective of which law or principle applied” (Section 3 Article 4).
Nevertheless, it is important to understand fully the meaning of the terms guardianship and custody. “Guardianship” means the capacity of a person to administer the property and assets of a minor, to look after his (or her) financial affairs, and to conclude contacts on his (or her) behalf or assist him with contracts. The guardian of the minor is competent to consent to the minor’s marriage, and to nominate a testamentary guardian. On the other hand “custody” means the capacity of a person to have actual physical possession of a minor, to live with him (or her), to take care of him (or her) and to assist him in daily life. During the course of a marriage the father has guardianship of the minor children of the marriage, and the mother and the father have Joint custody and control of the children. If divorce takes place, the court must decide both issues of custody and guardianship. Usually the father retains guardianship of the children, unless he is judged unsuitable, when sole guardianship can be awarded to the mother, if it is in the best interests of the child.
Whichever parent has custody after divorce, the other parent still normally retains the right to reasonable access to the children. During marriage both parents have the duty to support the children and each parent must contribute in proportion to his means. The responsibilities of parents to support their children are not brought to an end by divorce, and both parents remain obliged to take care of the child in the same way.
The Guardianship of Minors Act allows for a parent or any other person to apply through the court for the sole guardianship and custody of a minor where the parents are separated or divorced. However, there is provision for the other party to contest the sole guardianship and the courts always request a Social Welfare Officer’s report to insure the best interests of the child are catered for.
However, there are situations in which legislation such as the Guardianship of Minors Act is not considered where divorce takes place. For instance, May points out that only some of the issues concerning children ever get to the courts. Many “divorces” are arranged by the families involved and matters are dealt with according to tradition. Many wives are simply deserted and the children taken into the husband’s family. In a polygamous system there is nothing to prevent the husband remarrying or marrying a second wife, unless a woman goes to the community court (a right many women do not know about). Children will be taken into the husband’s family, which their mother will accept as “natural”. In some cases men have abandoned families, and some women may have reasons for not wanting their children, just as there are cases where children have run away from their fathers and returned to their mothers.
If fully examined, data on divorce cases might lead us to important children’s rights indicators. Although there were no data immediately available relating to the number of parents who divorced after having children, we found that there is potential for getting this kind of information. Disaggregation of the divorce cases in terms of the numbers of children affected, their ages, gender, socio-economic status and so forth might develop the basis for children’ s rights indicators. More importantly, perhaps, monitoring the processes and outcomes of divorce would provide information about the extent to which the decisions made were in the best interests of the child (Article 3), took a child’s opinion into account (Article 12) and enabled children to keep in touch with both parents (Article 9).