When one marries, the hope is to have a stable beautiful family. However, not all hopes turn out to be the reality. Many couples have found themselves dealing with nightmares of divorce and one such a nightmare is the disruption of the usual parenting scheme. Upon the granting of the divorce decree, one parent becomes the custodian parent and the other one enjoys access rights. And these rights carry with them consequences.
A custodian parent may want to settle in another country and take the child with him/her for one reason or the other. It is permissible to take the children out of the country but only on condition that there is consent from other parent with access rights. There has to be consent of the other parent. If the parents cannot agree or there is no consent from the other parent, since this will also remove the jurisdiction of the court, the High Court will have to make a decision as the upper guardian of the child has to make a decision. The guiding principle is the best interests of the child concept which focuses only on the welfare of the child concerned. The removal must be in the best interests of the minor child and not the interests of the parents involved.
The High Court of Zimbabwe and in the case of De Montille v De Montille 2003(1) ZLR 240 (H)NDOU J stated as follows p 244 (D)
"The child is aged three years and some months. In cases of this kind, a vital factor is the need to cause as little disruption as possible to the child's already disrupted life. The court has to take into account the child's need for stability and continuity. Not only in relationships with parents but in physical surroundings, school, friends and above all, brothers and sisters...."
It also has to be noted that while the court considers the best interests of the child, it is also not blind to the fact that the custodian parent has his/her rights which are constitutionally entrenched and ought not to be eroded lightly. In the case of Memory Minezhi v Boyland Boora HH-201-2020 Chirawu-Mugomba J cited with approval the case of Fv F wherein the judge considered the gendered nature of applications of this nature and the rights of the custodian parent and indicated that the court must be;
"Acutely sensitive to the possibility that the differential treatment of custodian parents and their non-custodian counterparts- who have no reciprocal legal obligation to maintain contact with the child and may relocate at will- may and often does, indirectly constitute unfair gender discrimination. Despite the constitutional commitment to equality, the division of parenting roles in South Africa remain largely gender –based. It is still predominantly women who care for children and that reality appears to be reflected in many custody arrangements upon divorce. The refusal of relocation applications has potentially a disproportionate impact on women, restricting their mobility and subverting their interests and personal choices that they may make to those of their children and former spouses."
From the above, the High Court of Zimbabwe also highlights that while the focus must be on the best interests of the child, the custodian's parent's rights should also be factored in when arriving at the decision because the decision at the end of the day ought not to glaringly discriminate against the custodian parent.
The significant point to make is that the non-custodian parent can challenge removal of the child from Zimbabwe and he/she can do that successfully on the basis that it is not in the best interests of the minor that relocation be allowed.
Further removal of a child from Zimbabwe should not be intended to deprive the non-custodian parent of his/her rights of access. The non-custodian parent will always visit the child however at his/her expenses. The reason why the right to access is not tampered with is because it is considered that it is in the best interests of the child that the bond between him/her with the non-custodian parent remains intact.
It is therefore encouraged that when the unintended happens parents should never use children as their fighting conduits. It is unhealthy for the children. Parents should always put their differences aside when it comes to the welfare of the children and always thrive to make decisions which best benefit the children.
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