It is axiomatic that the paramount criterion in determining the custody of the child is the welfare and wellbeing of the child or in other words ‘best interests of the child’ and the undesirability of disturbing the life of the child by change of custody. This is now a law in Tanzania and courts have been led by this principle and in my view it has worked.
The governing law is the Law of the Child Act, [Cap 13 R.E 2019] and its Rules made under it together with Section 125(2) (a), (b) of the Law of Marriage Act [CAP 29 R: E 2019]. Furthermore, Section 39(2)(c) of the Law of Child Act, Cap 13 R.E 2019 states that: –
‘‘It is preferable for the child to be with his parents unless his right is persistently abused by his parents’’.
The above provision of the law provides that in making consideration for custody it is preferable for a child to be with his parents except if his right is persistently being abused by his or her parent. Section 42 (l) (a) of the Law of the Child Act, Cap 13 R.E 2019 corresponds to Article 3 of the United Nations Convention of the Rights of the Child, 1989, and Article 4 of the African Charter on the Rights and Welfare of the Child. 1990 in which Tanzania is a signatory and ratified them. The above-cited section provides that: –
“The best interests of the child shall be a primary consideration in all actions concerning children whether undertaken by public or private social welfare institutions, courts or administrative bodies”.
The above provision provides that the best interest of the child shall be the determinant factor in any decision concerning the child. However, it is neither the United Nations Convention on the Rights of the Child nor the African Charter on the Rights and Welfare of the Child as well as the Law of the Child Act, [Cap 13 R.E 2019], which defined the phrase best interests of the child. It is my understanding that the term means and includes all that is best suited to a child in a particular circumstance in terms of services and orders that will ensure the child’s survival, development, and upbringing in terms of physical, psychological, emotional, and spiritual.
When I revisited section 39 of the Law of the Child Act, [Cap 13 R.E 2019], I found the factors that the court should have considered when making an order for custody of a child. Apart from taking into consideration section 39(2) (c) of the Law of the Child Act,
[Cap. 13 R.E 2019], the court may also consider other factors like the views of the child, if the views have been independently given and the need for continuity in the care and control of the child as it is provided for in the above section under subsection (2) (d) and (f) respectively.
On the other side of the coin, it is true that legally a child has a right to stay with her parents. However, in making an order for custody the court shall consider the best interests of the child and the undesirability of disturbing the life of the child by change of custody as it is provided for under section 39(2)(f) of the Law of the Child Act, [Cap 13 R.E 2019]. Moreover, the child’s opinion on to whom custody should be granted cannot be easily undermined.
Before I pen down, I wish to conclude that, the best interest caters far beyond financial ability since children need love, affection, and care hence, I find it pertinent to state that being financially capable is not a determining factor in granting custody of the child.