APPLICATIONS FOR CUSTODY AND ACCESS RIGHTS IN JUVENILE COURT IN TANZANIA

Custody of a child entails having the right and the obligation to make decisions about a child’s upbringing, such as, the child’s schooling, religious upbringing, medical care, and other factors which conform to the best interest of the child. In Tanzania, it is not common for a court to award joint custody. Instead, the norm is to issue separate orders, indicating that decision-making responsibilities are shared by both parents.

On the other hand, access to a child is a legal term for the right of a child and a parent to spend time together. This includes a parent having a role in decision-making, receiving information about the child’s education, health, and overall well-being. Access does not exclude other family members such as grandparents, and other relatives who can also have the right to access. In most cases, a parent who does not have custody of a child usually ends up having access thereof.  

Who may apply for Custody of a child?

According to Section 37 (1) of the Law of the Child Act, Chapter 13, Revised Edition, 2019 (the “Act”) a parent, guardian, or a relative may apply to a Court for custody of a child.

What are the factors to be considered by the Court in granting Custody or Access Orders?

The deciding factor in an application for Custody and Access rights to a child is solely based on the principle of the best interest of the child as provided under section 37 (4) of the Act. The Court may also take into account other factors including: -

• the age and sex of a child;
• the views of the child if the views have been independently given;
• that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents;
• that it is desirable to keep family members together;
• disturbing the life of the child by changes of custody; and
• any other factor that the Court may consider relevant.

The Procedures in filing Applications for Custody and Access to a child.

• The Applicant (Parent, guarding or relative) who is caring for a child is required to make a formal application by filing JCR Form Number 8 as set out in the 3^rd schedule of the Law of Child (Juvenile Rules) 2016 (the “Rules”), signed by himself. The Application should be filed in the Juvenile Court in the District where both the Applicant and the Respondent reside.

• Summons shall be issued by the Court and the same shall be served upon the Respondent within 14 days from the date of filing of the Application. Summons shall be attached with the application for custody and access, and it shall have a date of the 1^st hearing, details of the mediation services available with details on how services can be provided, and it shall be served upon the Department of the social welfare.

• After being served with the Application, the Respondent is obliged to file a Reply to the Application within 14 days from the date of service. In this Reply the Respondent may file a Cross Application for custody order as well.

• The Court shall order for the social inquiry report to be carried out by the Social Welfare Officer upon the Applicant and the Respondent, the social welfare officer may inquire to consult the child separately and if necessary to consult the child’s relatives. The Social Welfare Officer will present the report to the Court, whereas the said report shall be crucial in assisting the Court in determining and granting custody and access orders.

• Lastly, the Magistrate shall announce a Ruling whereby orders in respect of custody and access shall be granted or denied in accordance with the evidence presented in Court and the best interest of the child.

The Child’s rights where parents separate.

Subject to the provisions of the Law of Marriage Act, Chapter 45, Revised Edition, 2019 of the laws of the United Republic of Tanzania, in cases where the parents of a child are separated or divorced, the child is entitled to maintenance and education of the same quality as enjoyed immediately before the parent's separation or divorce. The child has the right to reside with the parent whom the Court deems capable of providing the best upbringing and support in the child's best interest. Section 26 (2) of the Act establishes a rebuttable presumption that, for children below the age of seven years, it is in their best interest to be with their mother. However, the court, in determining the applicability of this presumption to specific cases, must consider the undesirability of disrupting the child's life through changes in custody.

Duty upon a Custodial Parent to maintain a child.

According to Section 41 of the Act, a parent in respect of whom an order of parentage has been made shall have a duty to contribute towards the welfare and maintenance of the child to supply the necessities for the survival and development of the child. This does not release the non-custodial parent of his/her duties to contribute to the child’s welfare in general.

Overall, applications for custody and access rights orders are made available not only to assist parents in resolving uncertainty with respect to their child’s custody and access, but they are key and crucial to maintaining and proving the best interest of the child in general.

By Said Nassor- Advocate

Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.