FN v AK

The parties were married under an unregistered customary law union for nearly ten years and have three minor children aged nine, eight and six years. Following their separation in December 2024, the children remained with the applicant (father) in Harare. The respondent (mother) applied for custody in the Magistrates' Court after experiencing difficulties accessing the children. On 31 October 2025, custody was granted to the mother on the basis that the children are still young and require the nurturing care of their mother. The applicant noted an appeal but did not apply for a stay of execution. After schools closed in December 2025, the respondent requested handover of the children and their birth certificates. The applicant informed the respondent of his intention to enrol all three children at a boarding school in Norton and paid the fees. On 8 January 2026, the respondent collected the children with instructions to return them by 12 January 2026 for the new school term, but she retained custody and enrolled them at a day school in Marondera instead.

• Whether the noting of an appeal suspended the magistrates' court order granting custody to the respondent
• Whether the applicant was entitled to urgent interim relief compelling the respondent to release the children for boarding school
• Whether the requirements for urgent interim relief had been established
• The rights of a custodian parent versus a non-custodian parent in determining a child's education

The application for interim relief was dismissed with costs.

The binding legal principles established are: (1) The noting of an appeal against a magistrates' court order does not automatically suspend execution of that order; the party seeking a stay must make a formal application under section 40(3) of the Magistrates Court Act. (2) A custodian parent has the right to determine the child's education and schooling arrangements. (3) Urgent interim relief will not be granted where it amounts to final relief that has not been fully ventilated. (4) The balance of convenience in custody matters pending appeal favours maintaining the status quo where there is an extant court order based on the best interests of the child that has not been stayed.

The court made obiter observations that: (1) School fees already paid by the applicant could be refunded or held pending the outcome of the appeal, and since the applicant has other children at the same boarding school, he could make arrangements with the institution regarding fees already paid. (2) The alleged harm was self-created by the applicant. (3) The court referenced Makuni v Makuni 2001 (1) ZLR 189 (H) on the rights of a custodian parent in relation to a child's education versus those of the non-custodial parent, though this was not extensively discussed.

This case is significant in Zimbabwean family law as it clarifies the effect of noting an appeal on custody orders granted by magistrates' courts, emphasizing that an appeal does not automatically suspend execution unless a stay is specifically sought and granted. It reinforces the principle that custodian parents have primary authority in determining their children's education and welfare, and that courts will not grant final relief disguised as urgent interim relief in custody matters. The judgment also underscores the importance of the best interests of the child principle and that courts will maintain the status quo established by valid court orders when balancing convenience pending appeal.