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Applying
for custody of a child in the magistrate’s
court
The
law governing applications for custody of children under
the age of 18 years, in the Magistrates’ Court, can
be found in the Family Law (Guardianship of Minors, Domicile
and Maintenance) Act.
By making an application for custody of a child, a person
is applying for the right to possession and care of the
minor, including:
n the right of physical control over the child;
n the right to discipline the child;
n the right to control the education of the child;
n the right to protect the child; and
n the right to make medical decisions affecting the child.
Who can make an application?
A father or mother of a child can apply for custody, regardless
of whether the parents are married to each other.
Any other person, not being a parent of the child who the
court thinks has a sufficient interest in the child, for
example, relatives such as grandparents, aunts, or older
siblings, can also apply.
How to make the application?
To make the application you must do the following things.
First, you must make a plea before a Justice of the Peace
or a Clerk of the Peace at the Magistrates’ Court in
your district.
The plea is done in an interview between you and the Justice
or Clerk of the Peace. The plea is simply your reasons why
you should be granted legal custody of the child.
In the interview, you need to show that you are the child’s
parent, if this is the case, and you must take with you
proof of this. The child’s birth certificate can prove
this. If you are not a parent, you must establish that you
have a sufficient interest in the child.
On the basis of your plea, and the interview, the Justice
or Clerk of the Peace has to determine if you have sufficient
grounds to make the application.
If the Justice or Clerk of the Peace finds that you have
grounds to make the application, you are then directed to
do so.
The application is made by completing a standard form for
both married and unmarried people, which is given to you
at the magistrates’ court. You then take the completed
form to the process or counter clerks to pay an application
fee, and have the application processed.
If you are a parent and married to the child’s other
parent, the fee is a standard three dollars, irrespective
of how many children the application is being made for.
If you are a parent but not married to the child’s
other parent then the fee is three dollars for each child
in respect of whom you are applying.
Having made the application, you are assigned a court date
and a summons is made out in the name of the parent or person
to be excluded from custody.
You must take the summons to the summons officer in the
police station nearest to which this person lives. It is
your responsibility to ensure that the summons is served
on the person.
You should provide the summons officer with the person’s
proper address, and also make periodic checks with the officer
to see that the summons has been served.
Once the summons has been served, the officer who delivered
the summons signs a return of service form which is included
in the court’s file for your matter.
If on the date that the matter has been assigned, the matter
is called, and the summons has not yet been served (which
will appear from the absence of the return of service form),
then the matter will be adjourned until the person is served
with the summons.
What happens when the matter is called?
When the matter is called, and you and all the other persons
concerned are present, the court will ask whether the application
is contested by the other parent or person(s), that is,
whether the other parent or person(s) agree that the person
making the application should have custody of the child.
If it is uncontested, then the court will proceed to deal
with the matter immediately.
The court will grant custody of a child, if it thinks it
fit, having regard to the welfare and the best interests
of the child. The welfare of the child is the first and
most important consideration above all others.
On granting custody to the applicant, the court will usually
grant a right of access to the child to the other parent
or person(s), and may then go on to make an order requiring
that the parent or person(s) excluded from custody pay to
the parent granted custody, periodic payments for the maintenance
of the child.
Where the application for custody is contested, the court
usually makes a temporary order for custody of the child,
until the final determination of the matter.
In such a case a probation officer is assigned to conduct
inquires and do a report on the existing situation with
both the applicant and the person contesting the application.
This report will assist the court in making its decision
as to who should get custody of the child.
The person making the application has the responsibility
to show why they and not the other person(s) should be granted
custody of the child.
—Kahaya
Kesara Nanhu and Westmin James
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