High Court reasserts equal parental rights, rejects automatic maternal custody

THE High Court has reaffirmed that Zimbabwean law no longer gives mothers automatic preference over fathers in child custody disputes, ruling that the best interests of children, rather than a parent’s gender, must determine where they live.

Justice Catherine Bachi-Mzawazi, sitting in Chinhoyi, dismissed Florence Muoni’s bid for sole custody of her three minor children, ruling that there was no justification to uproot them from their existing environment with their father and stepmother.

The court instead granted Muoni access to the children during the first two weeks of every school holiday and directed their father, Joseph Dzotizeyi, to consult her on guardianship matters as and when the need arises.

The ruling underscores the legal changes introduced by the Guardianship of Minors Amendment Act, 2022, which repealed discriminatory provisions that had traditionally assigned fathers primary guardianship rights and mothers preferential custody rights.

“This legal misconception reverberates in both the curator ad litem and the Master’s reports. It needs reassertion,” Justice Mzawazi said, referring to the outdated understanding of maternal superiority in custody disputes.

“There has been a dynamic progressive shift, ushering in the constitutional tenet of equality. Fathers are now recognised as able custodians of minor children alongside their female counterparts.”

The judge stressed, however, that equal parental rights do not override the welfare of children, which remains the decisive consideration in custody and guardianship proceedings.

“The principle of the best interests of the child is dominant and still plays centre stage,” he said.

Under Section 3 of the Guardianship of Minors Act, as amended in 2022, parents, whether married or not, are required to exercise their guardianship and custody rights in consultation with each other.

Where parents are no longer living together as husband and wife, the parent with custody ordinarily exercises guardianship rights over the child in their care, unless a court order requires consultation with the non-custodial parent on guardianship matters.

The amendments also removed the automatic preference previously given to mothers in custody arrangements following separation, allowing either parent to be granted custody.

Guardianship extends beyond where a child lives to responsibility for essential aspects of the child’s life, including health, education, finances and general welfare.

In Muoni’s case, the parties’ customary union ended in September 2024, after which the children remained with Dzotizeyi and his first wife, who is their stepmother.

Muoni, a qualified teacher who relocated to Zvimba for work, approached the court alleging that the father was denying her access to the children and excluding her from decisions concerning their welfare.

She claimed she was prevented from visiting them even at their boarding schools, whose authorities had allegedly been instructed not to allow her access to the children on school premises.

However, the court found no sufficient basis to transfer custody from the father, noting that the children had established a harmonious relationship with their stepmother and her family and were settled in their existing arrangement during school holidays.

Mzawazi said the children’s stability and continuity weighed against changing their living arrangements, particularly given Muoni’s admission that she did not have a permanent residence and might have to move from one place to another.

“There is nothing on record that tilts the scale in favour of disturbing the children’s current environment and custodial status,” the judge ruled.

“Applicant conceded that her lack of permanent residence may mean constant moving from one place to another. This is detrimental to the children who need continuity and stability in an established environment.”

The court also noted that the children attended boarding schools and spent most of their time there. Muoni had indicated that she wanted them to remain in boarding school, while her initial concern about the couple’s seven-year-old daughter had changed in light of the possibility of disrupting the children’s schooling and residence.

The judge cited a recent Supreme Court decision, *Chantelle Tatenda Muteswa v Frank Buyanga Sadiqui (SC131/26), in which Chitakunye JA emphasised the need to protect children from unverified parental circumstances.

“In our view the welfare of the minor child is delicate and important. It should not be prematurely exposed to unverified parental circumstances,” the Supreme Court judge said.

The High Court also addressed the father’s failure to cooperate fully with the proceedings. Attempts to serve him through the Sheriff and obtain his input were unsuccessful, with the judge finding that the evidence pointed to an unwillingness to cooperate.

Despite this, the court said the reports before it did not condemn his parenting or guardianship abilities.

Justice Mzawazi observed that, in disputes involving minors, an independent social welfare or probation officer can investigate the children’s circumstances, interview interested parties and assess their living conditions and best interests.

The Children’s Act provides for the involvement of social welfare or probation officers in matters concerning children, while the High Court retains its role as the upper guardian of minors.

In this case, however, the judge found that further investigations were unnecessary because the reports already filed did not establish grounds for removing the children from their father’s care.

The court also criticised the attempt to introduce joint guardianship and access arrangements through the proposed order when these issues had not been properly canvassed in Muoni’s founding affidavit.

Nevertheless, in fashioning its final order, the court directed that Muoni be consulted on guardianship issues as and when necessary, particularly given that two of the three children are girls.

If the parents reach a deadlock, the court ordered, the custodial parent’s decision will prevail.

Muoni was granted access to all three children during the first two weeks of every school holiday, with the father retaining access for the remainder of the holiday.

The court made no order as to costs.

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