ARGUMENT FOR CUSTODY

Parenting is one of the most critical assignments we could ever have as humans. It is probably not the first time you have heard that a child has been mistreated by a parent or a guardian within Uganda. These abuses include physical violence, gender-based violence and sexual violence all a serious detriment to a child. At times, this abuse has extended to children being forced into child labour.  

Parenting is nurturing, socialising and providing for a child’s holistic growth and development. The Children’s Act stipulates under the second schedule that it is the parent, and guardian’s duty to provide education and guidance, immunization, adequate diet, clothing, shelter, and medical to a child and also gives any person who has custody of a child shall protect a child from discrimination, violence, abuse and neglect.

There is no limitation to parenthood within Uganda, this responsibility is extended to grandparents, stepparents, foster parents, adoptive parents and even communities and each of these people plays an essential role to play in the upbringing of a child. 

“Parental love is the only love that is truly selfless, unconditional and forgiving.”

– Dr. TP Chia

In an ideal world, custody of a child goes to both parents, however, in the legal world, there are moments when the custody of a child may be in question and the court would have to decide who would cater for the responsibilities we have mentioned earlier. Custody is usually in question in instances of divorce and separation.  In the case of Rwabuhemba Tim Musinguzi v. Harriet Kamakume Supreme Court, Civil Application No. 142 of 2009, it was stated that parents have a fundamental constitutional right to care for and bring up their children.

The welfare of the child is a consideration to be taken into account, and at times may be the paramount consideration in determining the custody of a child. A parent can only be denied the right to care for and raise her children when it is clear and has been determined by a competent authority, in accordance with the law, that it is in the best interest of the child that the child be separated from the parent. Both parents have similar and equal rights with regard to their children.

WHAT DOES THE COURT CONSIDER WHEN GRANTING CUSTODY?

1. The welfare of the child

In the case of  Re M (an infant), Adoption cause No. 9 of 1995, the court stated that in all matters relating to children, the welfare and best interests of a child shall be paramount. This is further stipulated in Section 3 of the Children Act. Welfare in this case means all circumstances that would affect the well-being and upbringing of the child.

2. Age of the child

In instances where the custody of a child is in question before a court or local council within Uganda and said child is of tender years, custody must and will be granted to the mother.

3.  Wishes of the child

While determining the question relating to the upbringing of a child within custody, the court will take into consideration the wishes of said child. Of course, this may be done with wisdom because the court may need to consider the age of the child before basing their decision on their wishes. Even still, the court will respect the wishes of the older children who are of age and are able to make up their minds as to what they think is best. 

HOW TO APPLY FOR CUSTODY IN UGANDA

1. A person presents an Application for Custody praying to be granted custody and obtain maintenance orders for the child. A person who applies for custody/maintenance is called an applicant while the party against whom the application is brought is called a respondent.

2. The application must be supported by an Affidavit in Support stating the reasons why he or she should be granted custody and/or maintenance orders for the child.

3. When filing the application in court, the requisite filing fees (UGX 6,000) must be paid in the bank and evidence of payment attached to the application.

4. The applicant then extracts a summons from the court requiring the respondent to either file an affidavit in reply or to appear in court on a day specified therein and serve it together with the application, on the respondent within 21 days after the court issues the summons.

5. Once the summons is served on the respondent, the applicant must file an Affidavit of Service in court clearly stating how he/she served it on the respondent.

6. Upon receipt of the summons and application, the respondent is required to file an affidavit in reply within 15 days from the date of receipt of the summons or before the date he/she has been summoned to appear before the court.

7. The affidavit in reply and all its accompaniments must be served on the applicant by the respondent.

8. In scenarios where the respondent fails to file an affidavit in reply within 15 days or fails to appear in court on the date mentioned in the summons, then the court may hear the application in the absence of the respondent.

9. At the hearing, the court will receive evidence from the applicant with respect to his/her application and the respondent with respect to his/her affidavit in reply.

10. After hearing from both parties or from only the applicant where the respondent does not file an affidavit in reply, the court will go ahead to either grant or refuse to grant the custody and maintenance orders to the applicant.

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