TASK.
CUSTODY AND MAINTENANCE OF CHILDREN
Custody of a child:
A Child means a person below the age of eighteen years under
Article 257 (c)1 of the Constitution and Section 2 2 of the Children
Act Cap 62
In the case of Ali Issa & Fatal Yusuf Misc. Application No. 904 of
19993, the court defined “custody” when used in connection with
children, it concerns control, preservation and care of a child’s
personal, physical, mental and moral integrity. Parents are
responsible for the child regarding their basic needs and rights.
Otto Methodius Pacific vs Edyline Sabrina Pacific 4, the court of
Appeal of Uganda stated that “custody is not only about care and
control and access but also involves the right to make long term
decisions like education, religion, major healthcare decisions and
others relating to a child”.
CX vs CY 20055, the Court of Appeal defined “custody” as having
two components: "care and control" and "residual custody". "Care and
control" refers to day-to-day decisions, while "residual custody" refers
to long-term decisions.
1
The Constitution of the Republic of Uganda 1995
2
The Children’s Act Cap 62
3
https://media.ulii.org/media/judgment/108309/source_file/
Namukasa_v_Kakondere_Divorce_Cause_No_30_of_2010_2015_UGHCFD_49_10_April_2015.pdf 12/02/2024
4
https://media.ulii.org/media/judgment/92263/source_file/otto-v-edyline-sabrina-pacific-2015-ugca-37-11-march-
2015.pdf 12/02/2024
5
https://www.elitigation.sg/gd/s/2005_SGCA_37 12/02/2024
1|Page
The Children Act6 defines a “custodian” as a person in whose care a
child is physically placed.
Thus, custody means physical caring of a child. It also means who
lives with and has the right to make decisions concerning that child
pertaining to all areas of parental responsibility. The rights subsist
until a child attains the age of majority.
Types of custody.
A. Joint Custody.
The Children Act7 defines “joint custody” as an order granting
custody of a child to two or more persons.
B. Sole Custody.
Black’s Law Dictionary Page 442 8 defines “sole custody” as an
arrangement by which one parent has full control and sole decision-
making responsibility to the exclusion of the other parent on matters
such as health, education, religion, and living arrangements.
C. Third Party Custody.
This happens incase both parents are unsuitable for the upbringing of
the child, the care is taken into a third party’s account i.e., a relative
of the child, the state through a probation and social welfare officer
or the foster parents if court deems the parents of the child unfit to
take on custodial responsibility. This arises in terms of child neglect,
abuse, discrimination, exploitation etc.
D. Interim Custody.
This is an application made and granted by court pending the
determination of custody of the child if it’s satisfied that the child is
suffering or likely to suffer harm if the order for interim custody is not
issued or the order is in the best interests of the child as provided
under Section 117 of the Children Act.
6
Section 1 of the Children’s Act Cap 62
7
Section 1 of the Children’s Act Cap 62
8
Black’s Law Dictionary
2|Page
This application may be made by a probation and social welfare
officer, mother, father or guardian of a child to a court of competent
jurisdiction pending the determination of the main suit for custody of
such a child by Court.
E. Custody by Agreement.
The parents of the child enter into a written agreement to determine
which of them shall have custody of the child of which the courts
recognize later. Such an agreement is enforceable in a Court of law
unless it is determined by the Court that it was made not in the best
interests of the child, was made under duress or made fraudulently
hence its revocation by court as provided under Section 118 of the
Children Act9.
Effects of a custody order
It bestows the parental duties and responsibility upon the custodian
as provided under Section 5 of the Children Act 10.The parent who is
not given custody has the right of access to the child.
Jurisdiction
The Children Act establishes the Family and Children Court in every
district which court is presided over by a Magistrate not below Grade
2. It must be filed in the court that has jurisdiction in the area where
the child resides.
When does the issue of custody arise?
The Divorce Act11 provides that in suits for dissolution of marriage, or
for nullity of marriage or for judicial separation, the court may at any
stage of the proceedings, or after a decree absolute has been
pronounced, make such order as it thinks fit, and may from time to
time vary or discharge the orders, with respect to the custody,
maintenance and education of the minor children of the marriage, or
for placing them under the protection of the court.
9
The Children’s Act Cap 62
10
The Children’s Act Cap 62
11
Section 28 of the Divorce Act Cap 144
3|Page
It can also arise when parents are unmarried, living apart, one or
both of them are dead and if the child is below the age of 18 years.
Who has a right to have custody of the child?
It is the right of every child to stay with their parents except for
situations where a competent authority determines in accordance
with the laws and procedures applicable that it is in the best interest
of the child to separate the child from his or her parents or parent.
According to Article 31 (4) of the Constitution of Uganda 12, children
have the right to know and be cared for by their parents or those
entitled by law to bring them up.
Custody of children does not automatically fall to one parent or the
other. Rather, it is a decision that is based on the welfare and best
interests of the children. However, parents hold the primary right to
custody of their children and both parents have similar and equal
rights with regard to their children. It should be noted that guardian,
institutions or organizations can also apply for custody of the child
Determining the custody of a child
Section 116 of the Children Act 13 provides that in reaching court’s
decision under the grant of custody of a child, it shall primarily
consider the welfare of the child.
In Nakagwa vs Kiggundu (1978)14. It was stated that it is trite law
that the court recognized the welfare of the child as the paramount
consideration in custody proceedings as such held that the term
welfare though incapable of the exact definition means any relation
to the custody of a child that in all circumstances affecting the child’s
well-being and upbringing has to be taken into consideration.
In Pulkeria vs Kiggundu [1978] HCB 31015, court held inter
alia “…the term welfare though incapable of exact definition means,
in relation to custody of children that all the circumstances affecting
the wellbeing and upbringing of the child have to be taken into
account and the court has to do what a wise parent acting for the
interest of the child ought to do”.
12
The Constitution of the Republic of Uganda 1995
13
The Children’s Act Cap 62
14
Nakagwa vs Kiggundu (1978) HCB 261
15
Pulkeria vs Kiggundu (1978)HCB 310
4|Page
Section 3 of the Children Act 16 provides that in all matters to be
determined relating to a child, the court shall regard the welfare and
guiding principles which include.
1) The ascertainable wishes and feelings of the child concerned, with
due regard to his or her age and understanding.
2) The physical, emotional and educational needs of the child.
3) The likely effects of any change in the circumstances of the child.
4) The child's sex, age, background and any other circumstances
relevant in the matter.
5) Any harm that the child has suffered or is at the risk of suffering.
6) Where relevant, the capacity of the parents of the child, guardian
or any other person involved in the care of the child, and in
meeting the needs of the child.
Other Factors considered when granting custody.
7) The economic/financial stability.
17
In Hoffman vs Hoffman (1970) EA 100, the court held that the
father’s superior financial position was irrelevant to the issue of
custody since his conduct was immoral thereby affecting the
child’s welfare and further stated that given the fact that he was
financially stable, he could support the child when it was living
with its mother.
8) The issue of citizenship.
In Musinga vs Musinga(1993) KALR160 18, it was irrelevant that
the mother was not a Ugandan citizen to have custody of a child as
long as the child’s nationality is upheld and she lives in Uganda.
9) Children of tender age.
In Teopista Kayongo vs Richard Sekiziyuvu (1978) HCB
24019, it was emphasized that children of tender age should
always be in the care of their mothers unless she is not a fit and
proper person.
10) Health of the parents.
The issue of health was discussed in the case of Williamson vs
Williamson20 where custody could not be given to the mother
because of her mental illness. There was an argument that the
mother was paranoid and as a result she should never be granted
16
The Children’s Act Cap 62
17
Hoffman vs Hoffman (1970) EA 100
18
Musinga vs Musinga(1993) KALR160
19
Teopista Kayongo vs Richard Sekiziyuvu (1978) HCB 240
20
Williamson vs Williamson
5|Page
custody of the child. It was held that the welfare of the child is
paramount and court was entitled to consider the parent’s wishes,
conduct, means and court said that since the environment
and mother’s health is not rebutted, custody should be granted to
the father since the mother’s health is likely to affect the child’s
welfare.
11) Character and conduct of the parent. i.e., drunkenness, cruelty,
sexual abuse and how much conduct might affect the child’s
wellbeing. In Nyakairu vs Nyakairu [1979] HCB 261 21 court
held that immorality on part of the father was not sufficient
justification for interfering with the father’s right to custody of the
children unless of such immorality was very fatal or was coupled
with other motives injurious to the child.
12) Customs regarding custody.
In Muhamad Hassan vs Nana Binti Mzee (1944)22, It was held
that court should have regard to the customs, race and community to
which the child belongs in granting custody. Section 6(2) of the
Children Act23 provides that parental responsibility of the child may
pass onto the relatives where the natural parents are dead. Although
the customary law and welfare principle are usually deferring in
nature, there is a belief that consideration is patrilineal in Africa,
custody of a child must always go to the father. But the act is specific
to the effect that the best interest of the child should be paramount.
Procedure
Rule 19 of the Children (Family and Children Court Rules) SI
59-224 provides for an application for custody by petition supported
by an affidavit and any reports or documents to be relied upon. Filed
in court with prescribed fees, summons extracted and to be served
on the respondent who is required to file an affidavit in reply. Then
court hears the applications, and a custody order is granted after
determining which party is fit for custody of the child.
Rights of non-custodial parties
21
Nyakairu vs Nyakairu [1979] HCB 261
22
Muhamad Hassan vs Nana Binti Mzee (1944
23
The Children’s Act Cap 62
24
The Children (Family and Children Court Rules) SI 59-2
6|Page
To participate in the children’s upbringing in regard to Section 131
of the Children Act25.Section 129(2) of the Children Act 26
provides that they have access to the child’s life. This should be
reasonable as per as long as it does not affect the child’s welfare as
per the case of Habyarimana v Habyarimana (1980) were the court
held that the father has a right to visit and access the lives of his
children as long as it doesn’t interfere with their welfare.
Where custody is granted to a non-parent, a biological parent has a
right to have supervised reasonable access to their child. This arises
where the parent shows willful neglect or mistreatment of a child or
where parents are declared unfit parents as provided under Section
132 of the Children Act 27.
Revocation of custody
Section 116(2) of the Children Act 28 provides that the court may
at any time revoke the grant of custody to one person and make the
grant to another person, institution or organisation.
Where the court is satisfied on information from a probation and
social welfare officer or an official of a local government council that
the parent who has custody of the child is wilfully neglecting or
mistreating the child, custody shall be granted to the other parent as
provided under Section 130 of the Children Act 29.
Where the court is satisfied that the applicant is not a fit and proper
person to have custody of the child or is dead, or suffers from mental
illness or is in prison, court may appoint a person who is willing to
have custody of the child to be the custodian of the child as provided
under Section 125 of the Children Act 30.
Where the court is satisfied that the custody by agreement would not
be in the best interest of the child and that it was obtained by duress
or fraud as provided under Section 118 of the Children Act 31.
Where the court during divorce, separation or nullity proceedings
finds that the child is suffering or is likely to suffer significant harm as
a result of both parents being unfit to have custody of the child, the
25
The Children’s Act Cap 62
26
ibid
27
ibid
28
ibid
29
ibid
30
ibid
31
The Children’s Act Cap 62
7|Page
court shall place the child in the custody of a fit person; but the
parents shall be allowed to have reasonable access to their child
unless it is not in the best interests of the child as provided under
Section 132 of the Children Act.32
It should be noted that removal of a child from a legal custodian is an
offence. Section 116(4)33 of the Children Act provides that a
person who unlawfully removes a child from the lawful custody of
another person, institution or organisation commits an offence and
shall be dealt with in accordance with this Act.
In the case of Anne Musisi versus Herbert Musisi [2008] KALR
59434 court held that the principle of welfare of children is paramount
and supersedes considerations such as who of the parents has a
superior right to the children. The children’s welfare is the court’s
sole concern, and other factors are relevant only to the extent that
they can assist the court in ascertaining the best solution for the
child.
Maintenance of a child
Tutor vs Tutor &Anor (2012)35 “Maintenance” was defined to mean
any order for payment including periodic payments of sum of money
towards the maintenance of any person under the order of the court.
Black’s Law Dictionary at page 1039 36defines “maintenance” to
mean financial support given by one person to another, usually paid
as a result of a legal separation or divorce;
Section 121(8) of the Children Act 37 provides that Maintenance
includes feeding, clothing, education and the general welfare of the
child.
According to Article 34 of the Constitution38, children have the
right to know and be cared for by their parents or those entitled by
law to bring them up.
32
ibid
33
ibid
34
Anne Musisi versus Herbert Musisi [2008] KALR 594
35
Tutor vs Tutor &Anor (2012)
36
Black’s Law Dictionary
37
The Children’s Act Cap 62
38
The constitution of Uganda, 1995
8|Page
Section 5(1) of the Children Act 39 imposes a duty upon a parent,
guardian or any person having custody of a child to maintain the
child by making sure they are educated, immunized etc. Section 6 of
the Children Act Every parent or guardian shall have parental
responsibility for his or her child.
In the case of Rwabuhemba Tim Musinguzi vs Harriet
Kamakuma Civil Application No. 142 of 2009 40, the court
observed that parents have a fundamental right to care and bring up
their children and such right is a constitutional right which should not
be considered in isolation,
Each parent has a legal obligation to support their child. Section 129
of the Children Act41 is to the effect that in all cases of divorce,
separation or nullity, both parents shall continue to maintain and
educate their child. Where the child is in the custody of one parent,
the other parent shall have reasonable access to the child.
In the case of Fenzi vs Nabbosa Natasha 42 the issue was whether
the applicant is entitled to the maintenance order as prayed. Court
held that the child’s welfare should be a paramount consideration
when determining who to grant maintenance of a child.
When court is granting a maintenance order the welfare of the child
is considered paramount as provided for in Section 3 of the
Children Act43.
The Court may consider some of the following factors in accessing
what financial provision should be made for a child.
Financial Status of the Parties,
The income, property, and overall financial standing of both the
person seeking maintenance and the person liable to pay.
39
The children Act Cap 62
40
Rwabuhemba Tim Musinguzi vs Harriet Kamakuma Civil Application No. 142 of 2009
41
The children Act Cap 62
42
https://media.ulii.org/media/judgment/78203/source_file/fenzi-v-nabbosa-2013-ughcfd-7-6-september-
2013.docx 12/02/2024
43
The children Act Cap 62
9|Page
Age and Health,
The age, health, and physical condition of the claimant may influence
the maintenance amount, especially in cases of elderly parents or
disabled children.
Standard of Living,
The court assesses the standard of living which was accustomed to
during the marriage and before the breakdown of marriage.
Reasonable Needs and expenses,
The child’s basic needs, such as food, shelter, clothing, education and
medical expenses, are considered.
Earning Capacity,
The earning capacity of the claimant and whether they have the
ability to maintain themselves.
Conduct of the Parties,
In some cases, the court may also consider the conduct or fault of
either party, though this is not the primary factor.
Who may apply for maintenance?
According to Section 121(1)44 of the Children Act, a person who
has custody of a child and who is the mother of the child, the father of
the child or the guardian of the child may make an application for a
maintenance order against the father or mother of the child.
According to Section 121(2) of the Children Act45, a child in
respect of whom a declaration of parentage has been made may also
make an application through a next of friend for a maintenance order.
When can one apply for maintenance?
Section 121(3) and (4) of the Children Act46 provides that an
application for a maintenance order may be made.
1) During a subsisting marriage.
2) During proceedings for divorce, separation or nullity of marriage.
3) During separation.
4) During proceedings for declaration of parentage.
5) After a declaration of parentage has been made.
44
The children Act Cap 62
45
ibid
46
ibid
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6) At any time during pregnancy
7) Before the child attains eighteen years of age.
Section 28 of the Divorce Act Cap 144 47 provides that in suits for
dissolution of marriage, or for nullity of marriage or for judicial
separation, the court may at any stage of the proceedings, or after a
decree absolute has been pronounced, make such order as it thinks
fit, and may from time to time vary or discharge the orders, with
respect to the custody, maintenance and education of the minor
children of the marriage, or for placing them under the protection of
the court.
Procedure
Section 121(5) of the Children Act48 An application for a
maintenance order shall be made by complaint on oath to a family
and children court having jurisdiction in the place where the applicant
resides, and the summons shall be served on the father of the child
or the mother of the child.
Section 121 (6) of the Children Act 49, summons must be issued to
the father or mother of the child to appear before the court on a day
named in the summons.
Section 121(7) on appearance of the person or on proof that the
summons were served on the person or more days before the
hearing, court will hear the evidence of the applicant and where the
respondent is in court, also hear their evidence and if satisfied make
the maintenance order for payment to the applicant:
A monthly sum of money as may be determined by the court, having
regard to the circumstances of the case and to the financial means of
the father or mother, for the maintenance of the child;
The funeral expenses of the child if the child has died before the
making of the order; and the costs incurred in obtaining the order.
Section 121(9) If the court thinks fit, it may, in place of a monthly
payment, order that a lump sum determined by the court be paid into
court and that the sum shall be expended on the maintenance of the
child.
Recovery of maintenance money.
47
Section 28 of the Divorce Act Cap 144
48
The children Act Cap 62
49
Ibid
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If after a month the sums ordered have not been paid and the
respondent neglects all efforts to have him/her pay, a magistrate
may by warrant under Section 122 of Children Act 50 direct:
a) That an attachment of earnings be made.
b) That the sum due, together with any costs incurred, be recovered
by distress and sale or redistribution of the property of the father or
mother unless he or she gives security by way of recognizance or
otherwise to the satisfaction of court for his or her appearance before
the court on a day appointed for the return of the warrant of distress,
but not more than 7 days from the taking of the security.
Enforcement and variation of maintenance order.
Section 123(1) of the Children Act51 provides that on the
application at any time by the applicant for maintenance order or by
the person against whom the order is made, the court may after
inquiring into the circumstances, make an order either increasing or
decreasing the amount of money previously ordered to be paid under
the order.
Section 123(2)52 provides that an order for maintenance against a
parent shall cease to have effect on custody of the child being
granted to that parent or other person in his or her place by the
Court.
The order is enforceable against the estate of the “payor” upon their
death according to Section 37 of the Succession Act 53. Also refer
to Sections 123(3) and (4) of the Children Act.
Under Section 124 of the Children Act provides that all money
payable under a maintenance order shall be due and payable to the
applicant unless a custodian has been appointed, in which case, the
money shall be due and payable to the custodian. The court may also
order that the money shall be paid into court and then paid to the
applicant or custodian in a manner and subject to any condition as
the court may direct.
Section 125(1) of the Children Act provides that whenever a
maintenance order is made against the father or mother, a court
may, at the time of making the order or from time to time thereafter,
50
The children Act Cap 62
51
Ibid
52
Ibid
53
Succession Act Cap 268
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on being satisfied that the applicant is not a fit and proper person to
have custody of the child; or is dead, or suffers from mental illness or
is in prison, appoint a person who is willing to have custody of the
child to be the custodian of the child.
The appointment of a custodian may be made on the
application
of a probation and social welfare officer or of the person having
custody of the child or of the person against whom the maintenance
order is made. as provided under Section 125(2) of the Children
Act54.
A custodian shall have power to apply for the recovery of all
payments in arrears becoming due under a maintenance order as any
other applicant would have been entitled to do. as provided under
Section 125(4) of the Children Act 55.
Cessation of order.
Under Section 127 of the Children Act 56, a maintenance order
ceases to have any force or validity upon the child attaining eighteen
years.
Section 31(2) of the Succession Act 57, in regards to the estate of
the deceased parent, the testator or testatrix is required to make
reasonable provision for maintenance of a child in the will. Court has
power to order for maintenance of a child until he/she completes
education or attains the age of 25 years, whichever occurs first as
provided under Section 31(2) of the Succession Act.
Offences in Respect to Maintenance
Section 126 of the Children Act provides that a person in whose
custody a child is commits an offence if he or she misapplies any
money paid for the maintenance of the child, and the grant of
custody may be varied in the best interests of the child.
The Penal Code Act Cap 128 58 also criminalizes the acts of child
desertion and child neglect as provided for under Section 144 and
Section 145 of the Penal Code Act respectively.
54
The children Act Cap 62
55
Ibid
56
Ibid
57
Succession Act Cap 268
58
Penal code Act Cap 128
13 | P a g e
In conclusion therefore, Since the children have peculiar needs given
their age, it is advisable that whenever the parents develop
misunderstandings, arrangements for custody and maintenance be
made basing on the best interest and welfare of the children. This
can be realized if the parents remain amicable.
References
1. The Constitution of the Republic of Uganda 1995
2. The Children’s Act Cap 62
3. The Divorce Act, Cap. 144
4. Succession Act Cap 268
5. Penal code act cap 128
6. The Children (Family and Children Court) Rules S1
59-2
7. The Judicature Act Cap 16
8. Magistrate Court Act Cap 19
9. Case law
10.Black’s Law Dictionary 9 th edition by Bryan A. Garner
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