JERE V CHITSUNGE 2003 (1) ZLR 116 (H)

Flynote

Family law — child — custody — factors to consider in awarding custody — custodian mother wishing to take child out of jurisdiction — move in c child's best interests — application granted

Headnote

The applicant and the respondent were formerly married. When they separated, the applicant sought to remove the child of the marriage to England, where she had a job. Her application was granted. The respondent appealed against the order. The applicant sought leave to execute the order pending the appeal.

Held, that the likelihood of irreparable harm being suffered by the respondent if leave to execute pending appeal were granted should also be considered in relation to the child. The interests of the child being paramount, the interests of the parents are secondary. In determining what is the interests of the child, the court should consider, inter alia;

• (1) the fitness or otherwise of the custodian parent
• (2) the age of the child
• (3) the sex of the child
• (4) the length of time the child has lived with either party or with his or her relatives
• (5) the degree of emotional stress the child would suffer in event of being separated from the other parent
• (6) any risk of ill-treatment by either party or by a member of the party's household.

In this case, the applicant had several factors in her favour. Her move to England was in the child's interests.

Held, further, that no irreparable harm would befall the respondent that could not be cured if the appeal went in his favour. The court was also entitled to look at the grounds of appeal and the chances of success. The respondent was seeking joint custody, an untenable argument as the parties lived oceans apart. The prospects of success were thus very doubtful.