Custody is generally formulated and approved during the divorce or separation hearings. However, the law does not prohibit filing custody applications before getting divorced. The law provides for prerequisites and procedures to consider in filing a custody application in both the Law of Marriage Act R.E. 2019 and the Law of a Child act R.E. 2019
Section 125 of the Law of Marriage Act provides that,
“the court may at any time, by order, place a child in the custody of his or her father or his or her mother”
This means that any parent may make an application at any time for the custody of the child. This is supported by the Law of the Child Act section 37 which provides that,
“a parent, guardian or relative who is caring for a child may apply to a court for custody of the child”
Therefore, for one to be able to succeed in the application, it is vital that the client shows that it is in the best interests of the child that the child remain with them. But also, the court shall refer to the considerations stated in section 39 (2) of the Law of the Child Act R.E. 2019 in deciding in whose custody the child should stay,
·       The age and sex of the child
·       The views of the child, if the view has been independently given
·       The need for continuity in the care and control of the child
·       The rights of the child
Other considerations that the courts shall consider include the wishes of the parents of the child and the wishes of the child where he is of an age to express an independent opinion.
To file a custody application the client shall have to file a signed relevant court forms in the district where both the parents may reside or where the parent with custody resides. In filling up the form the client shall have to fill in whether the other parent shall be entitled to access to the child or not. For an application for custody to be heard the following conditions have to be met, the child has to be domiciled in Tanzania, or have been resident in the country for at least one year.
The respondent parent shall be served by the court within fourteen days of filing the application and shall have to file a reply to the application within fourteen days detailing why custody should remain with him whereas he application shall be heard by the court within twenty-eight day.
If the application is contested the court may direct a social welfare officer to prepare a social enquiry report which shall include consultations with each of the parties separately including the child and recommendations considering the best interests of the child.
The court shall also consider the child’s physical, emotional, and psychological needs, capability of each parent in meeting the child’s needs and the undesirability of disturbing the life of the child by changes in custody.