.webp "CUSTODY OF CHILDREN (FAMILY LAW NOTES UGANDA)")
A child is a person under eighteen years of age.
According to Art 31 (4) of the Constitution of Uganda, it is the duty of parents to take care of their children. Parents have primary parental responsibility over their children.
Parental Responsibility responsibility refers to all rights, duties, powers, and responsibilities a parent has in relation to a child. (Section 1 Children’s Act)
The Children’s Act does not expressly provide for the meaning of custody but it defines a custodian under Section 1 as a person in whose care a child is physically placed.
Article 31 (5) provides that children should not be separated from their families or persons entitled to take care of them against their will or those persons. The exception comes in only where such separation is provided for by law.
Check out: Family Law Notes LLB Uganda
What is Custody?
According to the Black’s Law Dictionary 4th Ed, custody refers to the detainer of a man's person by virtue of lawful process or authority.
Custody in family law can be defined as the legal rules governing the care and physical placement of a child.
In Baguma V Mbabazi [2017], it was remarked that the Welfare Principle (Section 3 CA) is given paramount consideration while deciding matters concerning children.
Lawful separation of children from their families can be effected through Guardianship, Adoption, or the issuance of Custody.
It is worth noting that the order of custody is not absolute and can be varied at any time if the court finds it in the best interests of the child to do so.
TYPES OF CUSTODY
Interim Custody
This refers to the type of custody granted to a Probation and Social Welfare Officer (PSWO) or any applicant (parent or guardian) pending the main custody petition/application up to when a determination is made by a court. This kind of custody is temporary. When the court decides on who is to take custody then it ceases to exist.
Interim custody is provided by Section 73A of the Children Amendment Act
Custody by Agreement
This is the type of custody where both parents mutually agree on who should take custody of the child. The custody agreement must be written and not induced by fraud or duress. Custody can be joint, or sole.
Custody by Agreement is provided for by Section 73B of the Children Amendment Act.
An Application for Custody Can Be Filed By a;
Parent i.e. Mother or Father
Guardian
Institution or Organization
Custody is not absolute. It can be varied by the court when it appears to be in the best interests of the child.
Section 73 (2) of the Children’s Act provides that the court may revoke custody at any time if it considers that it is in the best interests of the child to do so.
An Application For Custody Can Be Filed Against a;
Father
Mother
Guardian of the Child.
And any other person with parental responsibility over a child.
Section 85 of the Children’s Act provides that where the court is satisfied with wilful neglect or mistreatment of the child by the person having custody of the child proved by reports of the Probation Social and Welfare Officer (PSWO) or Local Government Authorities, custody can be varied.
Furthermore, if according to the court, both parents are unfit or it is not in the best interests of the child to stay in their custody, then custody is granted to a fit person. (Vide Section 87 CA)
Note: According to Section 76 CA, any person having custody of a child(ren) has a right to apply for maintenance from the parents of the child(ren).
The maintenance duty towards children does not cease even after divorce, separation, or nullity of marriage.
This was evidenced in Hope Bahimbisomwe V Julius Rwabinumi HC Divorce Cause No.4 of 2004, whereafter custody was granted to the petitioner (wife) the respondent (husband) was obligated to contribute half of the general maintenance, education, and health costs of the child.
A maintenance order ceases to have force and validity after a child attains the age of 18. (See Section 82 CA)
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APPLICATION FOR CUSTODY IN UGANDA
Below is the procedure that an applicant must follow to obtain custody of a child.
An individual who requests custody or maintenance is referred to as an applicant and the party against whom the application is made is referred to as a respondent.
An application for custody and maintenance orders is made by filing an application for custody supported by an Affidavit.
The Affidavit in Support must be included with the application, outlining the applicant's reasons for custody and/or maintenance orders for the child.
The required filing fees (UGX 6,000) must be paid in the bank prior to filing the application in court, and documentation of payment must be included with the application.
Then the applicant obtains a summons from the court ordering the defendant to either provide an affidavit in response or show up in court on a specified date and, within 21 days of the court's issuance of the summons, serves it, along with the application, on the respondent.
The petitioner must file an Affidavit of Service in court after serving the summons on the respondent, detailing exactly what they served the respondent.
The respondent must file an affidavit in reply within 15 days of receiving the summons and application, whichever comes first, or before the day on which they are expected to appear in court.
The respondent is required to serve the applicant with the affidavit in reply and all of its supporting documents.
The court may hear the application in the respondent's absence in cases when the respondent fails to submit an affidavit in reply within the allotted 15 days or fails to show up in court on the day specified in the summons.
The applicant will testify about his or her application at the hearing, and the respondent will testify about his or her affidavit in reply.
The court will decide whether to give the applicant custody and maintenance orders after hearing from both parties, or from just the applicant in cases where the respondent does not file an affidavit in response.
Conclusion
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Disclaimer: This publication is meant for study purposes. Notwithstanding any provision hereof, the contents in this publication are not nor shall they be construed as constituting legal advice or the provision of legal services for or on behalf of any person.