By Rachel Mary Sithole

Do both married and unmarried fathers have rights with respect to minor children, and if so, to what extent do these rights apply with respect to custody in the event of divorce or separation?

Many concerned fathers in marriage lawsuits see their chances of success as having custody of underage children. It is not uncommon for a father to delay a divorce lawsuit because he fears he will lose custody of his children.

The common myth that only a mother can provide a loving and caring environment and is the more appropriate parent to obtain custody, and that a father is just a vending machine for caring for underage children, has been heavily debated and refuted.

Regardless of whether one is a mother or a father, both are individually entitled to the same rights, duties and privileges in relation to their children, as Shakespeare famously quoted: “If you stab us, don’t we bleed? When you tickle us, don’t we laugh?

Therefore, although we as humans are prone to being biased in custody matters because of social norms, the prejudice of a father’s rights and duties should be condemned. Custody issues are governed by the Guardianship and Minors Act [Chapter 5:08]

Now let’s turn to the law for the sake of clarity.

Rights of unmarried fathers

The common law position on custody and guardianship of an illegitimate child is that all parental rights rest with the mother. Such rights can only be impaired by the biological father if they are not properly exercised by the mother.

The biological father is equated with third parties with regard to the child, he has no parental authority and is not the guardian of the minor child. This position towards unmarried fathers can only be changed by the legislature.

An unmarried father cannot have custody of the child just because he is the birth father or because he supports the child or has more money than the birth mother. Proof must be provided before a court that the biological mother is not exercising her parental rights properly and that it is in the best interests of the child that the biological father is granted custody.

An unmarried father has no inherent right to an illegitimate child, as granting such rights would equate his legal status with that of a spouse in a divorce situation.

light at the end of the tunnel

To some extent, there is relief in the most recent case of unmarried birth fathers Sadiqi versus Muteswa HC3971 / 19 The common law position of the birth fathers was found to be incompatible with the provisions of the Constitution of Zimbabwe Amendment Act (No. 20) 2013 (hereinafter referred to as the constitution) in particular in contradiction to sections 19 (1) & 19 (2) (a) as read with section 81 (1) (d) This states that the best interests of a child are of the utmost importance in all matters that affect the child and that a child has the right to parental care and to sections 56 (1) which states that all persons are equal before the law and section 56 (3) that is, no one should be discriminated against based on their status.

Removing custody of an unmarried biological father is discriminatory on the basis of marital status, and a child is deprived of the right to parental care of a father because it is considered fatherless and does not deserve parental care except for maintenance purposes.

In all matters involving an underage child, the best interests of that child are of paramount importance. It can therefore be argued that the most important consideration that the courts should focus on is not the rights of the parents, but the best interests of the child. On the basis of such arguments, an unmarried biological father can be granted joint custody, custody or guardianship of a minor child.

Rights of married and divorced fathers

The position of married fathers is different as they have all parental rights and guardianship of their child and exercise these parental rights together with the birth mother of the child. However, as explained above, the courts will first consider what is in the best interests of the child before considering parental rights.

Conclusion

It should be noted that the Constitution supersedes any law, statute or rule, practice, custom, or conduct that is inconsistent with the provisions in Section 2 (1).

A child deserves a father’s love and care, regardless of status. Undoubtedly, the trailblazers are few in search of balance in the uncharted waters of paternal care, but … not for long.

“A good father is one of the most unsung, unsung, and unnoticed, yet one of the most valuable assets in our society.” B. Abraham

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.