I am scared to lose custody of my children
Dear Mirror Lawyer, My boyfriend failed to marry me despite several promises. In anticipation of this marriage, we had two children, a boy aged six years and a girl aged three years.
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After waiting in vain, I broke up with him and have been living with our two children since then. About a year ago, he informed me of his intentions to settle down with another woman and his decision to take custody of the children after the marriage was concluded.
Due to my worry that their stepmother would maltreat them, I objected to his decision and insisted that the children should continue to live with me. He then asked that the boy live with him so that he could train him to become a man like him.
I refused this request as well. He then sued me at the District Court for custody of the children. I am scared to lose my children and would be very grateful if you could advise me on what to do.
Agartha Akowiah, Achimota.
Dear Agartha, In cases like this, the court is guided by certain legal principles in determining who to grant custody of the children.
This is provided for in the Children’s Act. The Court will always look at what is in the best interest of the child and thus may even grant custody to a stranger if it believes that it is in the child’s best interest to do so. The welfare of the child is, therefore, the primary consideration in the grant of custody.
Secondly, the custody of younger children and children in need of special care will usually be given to the mother unless her character is impeachable.
Poverty alone is also not a bar to the grant of custody to the mother, where her character has not been impeached. Thus, considering that both children are still very young, the court is likely to grant you custody as their mother.
Again, the court is always reluctant to split up siblings, especially where it is desirable under the circumstances to keep them together. Considering that you are the parent who wants both children, you are most likely going to be granted custody.
Furthermore, the court is unwilling to uproot children from their known environment, especially where there is evidence that they are better off there. When children get used to a particular environment, the court will only take them out of such an environment where it is detrimental to their welfare or they are better off somewhere else.
Thus, considering the children’s only known environment is where you’ve lived with them, this principle again goes in your favour.
Lastly, the court will grant custody in most instances to the parent whose control and care the children are used to. This principle is also to your benefit.
These are summarised in Section 45 of the Children’s Act as follows:
45. Considerations for custody or access
(1) A family tribunal shall consider the best interest of the child and the importance of a young child being with the mother when making an order for custody or access.
(2) In addition to subsection (1), a family tribunal shall consider:
(a) The age of the child,
(b) That it is preferable for a child to be with the parents except where the rights of the child are persistently being abused by the parents,
(c) The views of the child if the views have been independently given,
(d) That it is desirable to keep siblings together,
(e) The need for continuity in the care and control of the child, and
(f) Any other matter that the family tribunal may consider relevant.
Based on the facts you have narrated, the court is more likely to grant you custody over the two children and give them access to their father to see them on weekends and holidays.
