Wednesday, 4 February 2009

Child Custody after Divorce

In Tanzania, custody is governed by civil law, regardless of the type of marriage. The 1963 Law of Persons Act declared that children born inside marriage belonged to the father. However, the 1971 Marriage Act requires custody to be decided in the best interest of the child, but routinely defers to custom in individual cases. Prior to 1971, custody of Muslim children was administered under Islamic Law; however, the uniform codification of the Marriage Act included child custody regulations. Practically, if a woman files for custody, the father will not contest the motions. Here means that when woman open a case for custody father will not be able block the case. However, in absence of contestation, the father generally gets custody. Further, the Marriage Act provides that a father is responsible for maintenance of children until 18 years of age, regardless of custody
Custody patterns also vary depending on local lineage patterns. Among the matrilineal Muslims, the child belongs to his or her mother and her lineage, and remains with the mother in case of divorce, until age of 7; courts also directed to consider: customs of community to which parents belong; economic circumstances of both parents; housing that both parents can provide; and behaviour of mother and whether she contributed to marital breakdown If the mother dies, the child still remains with the members of the matriline and is usually maintained by a maternal uncle.

Looking to law governing marriage and divorce in Tanzania Act of 1971 (LMA) Section 125 of LMA provide for custody of children after divorce that may be granted either to the father or mother or any third party who is in position to provide for welfare of the children.
Section 126 provides for condition to custody order and section 127 provides for principle of welfare of child and in determining custody of children the welfare of the child is paramount and the court will grant custody to the one who is in better position to grant custody, however court always prefer before deciding on granting custody divorce parties to agree themselves to whom the child will leave with.

Welfare of the child including food, clothes, shelter, education, culture as well as good moral or attitude of the parent. So this is not only a matter of financial position of the parent.
Looking to the cases concerned the child custody after divorce in Tanzania based on the group focus, “why always mother have more right to be granted custody of child”. Here are examples which shows that even father can be granted custody of child

In case of Vestina Kibutu vs. Mbaya (1985) Tanzania Law Report (TLR) 42 custody was granted to the father because he was in the position to provide education and psychological development.
Another case of Re Steven Christopher Newborn (1975) TLR 24, courts in discussing welfare of the child takes into consideration social aspect and culture of divorcee. In this case spouses were English and divorced in Mwanza Tanzania. Mother decided to stay in Tanzania with her son Steven, Husband wanted to go England with his son. Court in its decision said it is better for father to go with his son England to be raised with English culture.

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