HACKIM v HACKIM 1988 (2) ZLR 61 (SC)

Flynote

Family law — child -custody — variation of custody order — grounds for — removal of child from jurisdiction — non-custodian parent refusing to consent to removal — when court will overrule non-custodian parent — sex of child — to what extent decisive in choosing which parent should have custody.

Headnote

A parent who applies for variation of a custody order in respect of his or her child must show good cause for the variation sought, but there is no onus on him or her to show that there has been a change in the circumstances of the parties or any misbehaviour or shortcoming on the part of the other parent or that the child is suffering injury or prejudice under the existing order. All that he or she must do is satisfy the court, on a balance of probabilities, that it is in the best interests of the child to make the variation rather than maintain the status quo. If this should appear to be the case, the court should not hesitate to vary its order, however inadequate the non-custodian parent's explanation might be for consenting to the custody order in the first place. The court should nevertheless not easily deprive the custodian parent of custody where there is little justification for doing so.

In considering what is in the best interests of the child, the court should take into account such factors as the sex, age, health and the educational and religious needs of the child, the social and financial position of each parent, his or her character, temperament and past behaviour towards the child, and, if the child has reached the age of discretion, his or her personal preferences. It is desirable for the court to see and hear the parties and their witnesses. With regard to the sex of the child, there is no principle of law that a son is better off with his father than with his mother or that a girl should be with her mother. The sex of the child is merely one of the considerations to be borne in mind.

The mere fact that a non-custodian parent does not like the custodian parent's wish to emigrate with the child may not of itself be sufficient to warrant a variation of the order. A custodian parent who is not at fault should not be deprived of custody solely because he or she wants to remove the child from the jurisdiction. The predominant consideration is the welfare of the child; the fact that the custodian parent wishes to emigrate can only influence the success of an application for variation if the court is of the opinion that the child's interests would suffer were he or she to be removed from the jurisdiction.