Introduction
The children are full-fledged human rights holders. They are beneficiaries of all fundamental human rights. Having had a benefit of handling a number of cases involving children, I write this article to increase knowledge on the laws and regulations that protect the rights of children in Uganda. While this article is not intended to be used as an authority, it is designed to assist parents, NGOs, social workers and other persons and government agencies that may be confronted with questions relating to custody and maintenance of children in Uganda.
Legal framework and Jurisdiction & duration of proceedings
Globally, children’s rights play an increasingly important role in family law and are now widely recognized and respected. Given their peculiar characteristics and needs, they are subject to special international and domestic laws and regulations. In Uganda, custody and maintenance is among others regulated by the 1995 Constitution of Uganda, the Children Act, Divorce Act and the Children (Family and Children Court) Rules. The rights of children are similar worldwide and this explains not only why there are many international instruments regulating the rights of children but also explains why most of international Instruments relating to children have been ratified and domesticated by most countries. Such international instruments include The United Nations Convention on the Rights of the child which Uganda ratified in 1990 and the African Charter on the Rights and the Welfare of the Child.
Jurisdiction
The Children Act as amended establishes the Family and Children Court which court is presided over by a magistrate not below grade 2.
Who is a child?
According to the Constitution of Uganda and the Children Act as amended, a child is every human being below the age of 18 years. This is the legal parameter used, including in International legal framework to define who is a child.
Meaning of Custody
Though the term custody is not defined by the Children Act, it does define a custodian as a person in whose care the child is physically placed. However, the courts have over time, defined the term custody. In the case of Ali Issa & Fatal Yusuf, the court stated that “the word custody when used in connection with children essentially concerns control and preservation, care of the child’s passion, physical, mentally responsibility for a child in regard to its needs, food, clothing, instructions and the like”
While in the case of Otto Methodius Pacific-v- Edyline Sabrina Pacific, the court of Appeal of Uganda stated that “custody is not only about care and control and access but also involves the right to make long term decisions like education, religion, major healthcare decisions and others relating to a child”.
When does the issue of custody and maintenance arise?
While it is every parent’ s desire to have custody and provide maintenance for his or her child just like how it is every child’s wish to grow up with his or her parents, not all marriages and relationships last forever. Whenever parents separate after being blessed with children, the parents ought to give priority to the welfare and best interest of their children. The most important consideration for parents who are separating or unable to live together with their children is which parent will live with the children, how much time the other parent will spend with the children and who will provide maintenance of the children.
During divorce, nullification or judicial separation proceedings, court may at any stage of the proceedings, or after the a decree absolute has been pronounced make such order as it thinks fit, and may from time to time vary or discharge the orders, with respect to the custody and maintenance of the minor children.
The issue of custody and maintenance can become difficult as divorced or separating parents may have competing aims and desires for their children and different views of what constitutes their wellbeing. While in certain circumstances, it may be easy for instance if one parent has decided to move away and the parents do not want the children to change schools.
Custody by agreement
The law allows parents of the child to enter into a written agreement to decide which of the two parents should have custody of the child. Such agreements are recognized and enforceable except where court finds that enforcing such agreement would not be in the interest of the child. Such agreements ought to be made voluntarily and must not be as a result of duress and fraud.
Who has a right to have custody of the child?
It is the right of every child to stay with their parents except for situations where a competent authority determines in accordance with the laws and procedures applicable that it is in the best interest of the child to separate the child from his or her parents or parent. According to the Constitution of Uganda, children have the right to know and be cared for by their parents or those entitled by law to bring them up. Custody of children does not automatically fall to one parent or the other. Rather, it is a decision that is based on the welfare and best interests of the children.
Parents hold the primary right to custody of their children and both parents have similar and equal rights with regard to their right. See: Rwabuhemba Tim Musinguzi Vs. Harriet Kamakune. it is important that both parents stay in the lives of the children because their welfare is best served if both parents are involved in their upbringing.
Sole or joint custody
The legal framework for Children in Uganda encourage joint custody and parents must consult each other whenever circumstances permit. It is in the best interest of the child that parents have joint custody.
Joint custody does not necessarily mean that both parents must live with the child since they may have divorced or separated. What joint custody entails is for both parents to be involved in the upbringing of the child and the right to access the child whenever a parent wishes. Thus while custody may be granted to both parents, the Physical custody may be granted to one parent with the other parent having the right to spend time with the children as and when he or she desires provided it is in the best interest of the child.
In custody proceedings, it is crucial that courts recognize and promote joint parenting so that both parents can continue to have a direct involvement in the child’s life. Parental responsibility is for life and courts should endorse the concept of joint custody. Courts should not assume sole custody because parents display animosity towards each other. It is only when it is evident that joint custody will not work in the interest of the child that alternative order should be made. Sole custody should be exceptional, and should be granted for instance where physical, sexual or emotional abuse by a parent is established. A decision giving sole custody to one of parent with minimal access or visitation amounts to excluding that parent from the upbringing of his or her child. The court should give reasons why it has given such little time to one parent especially if is there evidence that both parents love their children. See Otto Methodius Pacific-v- Edyline Sabrina Paciifc, CX-V- CY {2006} 4 LRC
vIn the case ofHabyarimana-V- Habyarimana [1980] HCB 139, court held inter alia that the father of the child as a parent having a right of access to his child would be entitled to visit the children as often as he pleases provided that such visit did not unduly interfere with the wellbeing of the children and where necessary the children would be free to visit the father.
What then does court consider in matters of custody and maintenance?
When considering issues concerning children, their welfare is paramount and must be the guiding principle. See, Article 34 of the Constitution of Uganda, Section 3(1) the Children Act, Article 3(1) of the United Nations Convention on the Rights of the child, Article 4(1) of the African Charter on the Rights and the Welfare of the Child.
In the case ofAnne Musisi versus Herbert Musisi [2008] KALR 594 court held that the principle of welfare of children is paramount and supersedes considerations such as who of the parents has a superior right to the children. The children’s welfare is the court’s sole concern, and other factors are relevant only to the extent that they can assist the court in ascertaining the best solution for the child. See Bromley’s Family Law, 8th Edition, at
page 336. This means that rights and interests of others are relevant only in so far as they bear upon the child’s interest. All other considerations fall back to the position of mere guidelines compared to what will ultimately preserve and uphold the children’s welfare.
Meaning of welfare principle
In Pulkeria-v- Kiggundu [1978] HCB 310, court held inter alia “…the term welfare though incapable of exact definition means, in relation to custody of children that all the circumstances affecting the wellbeing and upbringing of the child have to be taken into account and the court has to do what a wise parent acting for the interest of the child ought to do”.
The term welfare of a child is not to be measured by money alone nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical wellbeing nor can the ties of affection be disregarded. See R: McGrath (Infant) (1893) 1 Ch. 1423
Welfare is an all-encompassing word which includes material welfare, both in sense of an adequacy to provide a pleasant home and comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. Although material considerations have their place, they are secondary maters and more important are stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents. See Walker-v- Walker and Harrison.
Age of the child
If the child is of tender years and the custody dispute is between the father and mother, custody of the child if of tender years ought to be granted to the mother. See Kagimu-v- Kagimu (2001-2005) 3 HCB 100
Financial capacity
The court is required to determine whether both parents are capable of caring for the child. This evaluation comprises financial, emotional, and physical considerations. Mukulu -v- Mukwaba (Divorce Cause No. 16 of 2021. The welfare principle governing decisions concerning children would demand that financially capable parents must cater for the needs of their children irrespective of where the children are, and depending on the circumstances of each case.
Wishes of the children
The best wishes of the child ought to be considered by court when adjudicating on custody of the children. The court ought to have regard of the ascertainable wishes of the child concerned considering the age and the level of maturity. It is therefore the duty of court to interact with the child in the absence of the parents.
Maintenance.
While the child has a right to education and guidance, clothing, shelter, medical care, food, it is the duty of the parent, guardian or any person having custody of child to make the child enjoy his or rights. The children therefore have the right to know and be cared for by their parents or those entitled by law to bring them up. The children are entitled to school fees, care and the general welfare.
An application for a maintenance order may be made by any person who has custody of a child against the father or mother of the child. An application for maintenance of the child may be made during the subsistence of the marriage, divorce, nullity or separation proceedings. The Application for maintenance can also be made at any time during pregnancy and must be made before the child turns 18 years.
Maintenance of children is a shared responsibility. The parental responsibilities ought to be shared by both parents, none of the parents should, unless there is justifiable reason, shoulder the financial burden and emotional responsibility alone. See Anne Musisi-v- Herbert Musisi & Anor Divorce Cause No. 14 of 2007.
In the unfortunate scenarios where the person declared to be the father or mother of the child is dead, the law allows an order for maintenance to be made and enforced against the estate of the deceased parent.
What happens if the child attains majority age?
The law limits custody and maintenance to children below the age of 18 years. Therefore, all matters relating to children ought to be adjudicated before the child turns 18 years. Custody or maintenance order ceases to have effect once the child turns 18 years. The fundamental question that follows then is; what happens to those who have turned 19 years but are still in need of care, protection and maintenance or other special needs. What happens to those who have turned 19 years but are still in need of financial support to complete university started they started with the support from their parents? The children Act may not provide for special circumstances under which parents may be ordered to keep offering support to children upon becoming of majority age. However, the same Act does not bar parental support to children who have attained majority age. The court may however, invoke its inherent powers under section 33 of the Judicature Act and Section 98 of the Civil Procedure Act that empowers court to provide remedies that meet ends of justice. The court may in exceptional or special circumstances direct parents to continue offering support to children after attaining the majority age. The exceptional circumstances may include children with disabilities or development challenges who even after attaining the majority age may not be able to survive on their own. The next category is for school going children who attain the age of majority while still in school and it is of utmost importance to give support in order to complete their education especially for the phase that started with support from their parents or guardians while they were still under 18 years of age or was started with the expectation from the beneficiary that the support would continue to the end of the course. This should be considered on merits of each case, for instance it may be required to demonstrate that the parents have the capacity to continue the financial and other support. See Birungyi Nicholas-v-Kakyo Pamela, High Court at Fort Portal, Civil Appeal No. 32 of 2022
In the case ofAsio Caroline-v- Dickson Opul High Court Family Division, Matrimonial Cause No. 167 of 2020, where one of the children was 18 years,court cited with approvalthe case ofBrossy-v- Brossy (2012) ZASCCA where the issue was whether the child who was no longer a minor was still entitled to maintenance and the court held that the maintenance order ceased to apply since the child was above the age of majority. However, courttook note of the fact that according to the curriculum of Uganda, young adults of between 18 and 25 years of age are still in school, still living with their parents, jobless and unable to cater for themselves. Court held that it was the duty of both parents to maintain the child until she finishes school.
Conclusion
Since the children have peculiar needs given their age, it is advisable that whenever the parents develop misunderstandings, arrangements for custody and maintenance be made basing on the best interest and welfare of the children. This can be realized if the parents remain amicable. The issue of Custody and maintenance becomes problematic if there is resentment or if the parents interests are irreconcilable. If this ever happens, you ought to seek assistance of a family law practitioner to determine the next step.
Author: Kasingye Stuart
Tel No. +256 785348742, +256701348742
Email Address: skasingye@gmail.com
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