What is Custody?

The courts have defined Custody as the entitlement of a parent to exercise the daily care and control as regards the rearing of their child. If the parents of a child are married, they are automatically joint guardians and custodians of their child. However, if the father and mother are not married, and if the father of the child wishes to acquire custodial status, he can apply to the Court even if he is not a guardian of the child at the time of making the custody application. The mother of the child is his/her automatic custodian.

A Court can award both parents joint custody of a child. However, a Court will only make such an Order if it is satisfied that the couples can work together sensibly and happily.

Access

Who can apply for access?

If a parent is a guardian of the child, but does not have custody rights in relation to that child, he/she can apply for access to the child. 

It is important to note that an Access Order is never a final Order, therefore it is always open to either parent to apply to the Court to vary the access if it is in the best interest of the child.  

A court will rarely refuse a parent access to his/her child however the court will always take the best interest of the child into account.

It has been noted by Courts that the right of the child to access extends beyond the right of access to his or parents, to that of access to grand-parents and the extended family of the child.   Any person who is a relative of the child or who has acted in loco parentis to a child can now apply to the Court for an Access Order to the child. However, the applicant must first apply to the Court for leave to make the Application. In deciding whether or not to grant leave for this Application, the Court will have recourse to various factors.