WHAT IS A CUSTODY OF A CHILD?
Custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent or the guardian with custody can make decisions about the child’s schooling, religious upbringing and medical care. In many states, courts regularly award joint custody, which means that the decision making is shared by both parents.
ACCESS TO THE CHILD
Access to the child is the legal term for the right of the child and parent to spend time together. Although they may not have a role in making decisions, a parent with access has the right to receive information about the child’s education, health, and well-being. Other family members, like grandparents, can also have the right to access. Usually a parent who does not have custody will have access to the child.
A parent, guardian or a relative who has been caring for a child prior to the Court order placing the custody of that child to another person may apply to a court for periodic access to the child.
WHO MAY APPLY FOR THE CUSTODY OF A CHILD?
A parent, guardian or a relative who is caring for a child may apply for custody of the child.
WHERE TO APPLY FOR THE CUSTODY OF A CHILD?
The parent, relative or guardian is required to make an application for custody of a child to the Court. In Tanzania the court that has jurisdiction to deal with custody of a child is JUVENILE COURT located in a District where both respondent and applicant reside, or where respondent resides, and the governing Laws is The Law of the Child Act (CAP 13) of 2009 and its Regulations.
WHAT ARE THE CONDITIONS TO BE CONSIDERED BY THE COURT IN GRANTING ORDER OF CUSTODY OR ACCESS?
In grant an Order of custody or access of the child, the Court shall consider
- the report from the Social Welfare Officer and the best interest of a child,
- the importance of a child being with his mother and
- child’s right where parents are separate or divorced that includes; maintenance and education of the same quality he enjoyed immediately before his parents were separated or divorced;
- living with a parent who in the opinion of the court is capable of raising and maintaining the child in the best interest of the child; and visit and stay with the other parent whenever he desires, unless such arrangement interferes with his school or training program.
The court may grant custody of the child to an applicant on such conditions as it may deem fit and the same court may, at any time revoke the grant of custody to one person and grant the custody to another, approved residential home or an institution, as it may deem necessary. In reaching its decision that is to grant or revoke the grant of custody the court shall primarily consider the best interest of the child.
CONSIDERATIONS FOR CUSTODY OR ACCESS
The court may consider the application for custody of a child where the child is domiciled or ordinary resident in Tanzania OR for a period of at least one year the child resides in Tanzania OR the child has been wrongfully retained in Tanzania or wrongfully removed from another country.
There shall be a rebuttable presumption that it is in the best interest of a child below the age of seven years to be with his mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of;
- disturbing the life of the child by changes of custody.
- the age and sex of the child;
- that it is preferable for a child to be with his parents except if his right are persistently being abused by his parents;
- the views of the child, if the views have been independently given;
- that it is desirable to keep family member together;
- he needs for continuity in the care and control of the child; and
- any other matter that the court may consider relevant.
PROCEDURES FOR MAKING AN APPLICATION FOR CUSTODY OR ACCESS
- FORMAL APPLICATION TO THE COURT
The applicant (parent, guardian or relative) who is caring for a child required to make a formal application to the Juvenile court, by filling JCR Form No. 8 set out in the 3rd schedule of The Law of Child (Juvenile Rules) 2016, signed by himself or his representative. The application should be filed to the Juvenile Court in a District where both respondent and applicant reside, or where respondent resides.
- SERVICES OF APPLICATION
The application shall be served to the respondent or any interested party within 14 days from the date of being filled to the Court. The summons shall contain application for custody or access, date for the 1st hearing, details of mediation services available with detail on how services can be contacted.
- INFORMATION TO THE DEPARTMENT OF SOCIAL WELFARE
The Department of Social Welfare shall be informed about the application for Custody OR Access only if the applicant is a child.
- RESPONDENT TO FILE A REPLY
After being served the respondent required to file a Reply to the application within 14 days from the date of service. In this reply the respondent may file a Cross Application for custody order.
- ORDERING OF A SOCIAL INQUIRY REPORT ON CUSTODY OR ACCESS AND JUDGEMENT
Where there is a contested application for custody or access, the Court may direct the Social Welfare Officer to prepare a social inquiry report; and where there is a need to consult the parties to the proceeding, the officer required to consult them separately, consult a child separately and if necessary, to consult the parents and relatives. Then the Social Welfare Officer will present the report to the Court, whereas the Court will consider it in granting the custody order.
N.B: There shall be a rebuttable presumption that it is in the best interest of a child below the age of seven years to be with his mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of the child by changes of custody. The Children will continue living with their mother until they reach the age of seven years, when they will have an opportunity to choose which parent to stay with.
At Eden Law Chambers, we assist Clients and render highly professional services in all matters relate to the custody and access of the child including filing an application for custody, litigating and defend custody and access to the child actions instituted before the courts of Tanzania. This article is intended to give you a general overview of the Child Custody Law in United Republic of Tanzania. If you would like further information and clarification on any issue raised in this article, please contact;
Eugenia V. Minja, Partner