Factors Considered by the Courts when Granting Custody

 # The welfare of the minor is very broadly defined and includes many diverse factors, notably:

# the age, sex and religion of the minor: courts take into account the personal law of the father). Thewelfare of younger children is generally regarded as being in the mother’s custody;

# the character and capacity of the proposed guardian: courts usually reject baseless allegations against mothers; 

# the wishes, if any, of a deceased parent, for example specified in a will; 

# any existing or previous relations of the proposed guardian with the minor’s property: courts do not look kindly on guardians seeking custody just in order to have control over the minor’s property. But if, for example, the minor’s property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mother’s favour.

# the minor’s preference if she/he is old enough to form an intelligent preference, usually accepted as about 9 years old.

# whether siblings would be divided: courts prefer to keep children united and award custody of both to either the mother OR the father.

# whether either/both parents have remarried and there are step-children: Although the mother’s remarriage to someone who is not the children’s close blood-relative often means the court will not grant her custody, this rule is not strictly followed. Although the father’s remarriage usually denies him custody, sometimes the courts agree to grant him custody especially when the children’s step-mother cannot or will not have her own children.

# whether the parents live far apart: courts sometimes do not give the mother custody because she lives very far away from the father who is the ‘natural’ guardian. But in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge said modern transport had shortened distances and meant that the father could depart from his home in the morning and return by evening.

# the child’s comfort, health, material, intellectual, moral and spiritual welfare: this very broad category includes the adequate and undisturbed education of the child.

However, the mere fact that the mother is economically less secure than the father, or that she suffers from ill-health or a disability is not usually reason enough to deny her custody because maintenance is the father’s responsibility irrespective of who holds custody. The mental and psychological development of the minor should not be upset by a reversal of the existing status quo: courts will take into account the likely impact of a change in guardians and the child’s reaction to this change.