Ian Ross Waters v Aparna Waters

The plaintiff and defendant married in Harare on 3 December 2005 and had three children: Keyan (born 17 December 2006), Aydan (born 29 February 2008), and Quillan (born 11 September 2010). The plaintiff issued summons for divorce in March 2012 citing irretrievable breakdown. In April 2012, the plaintiff moved out of the matrimonial bedroom, and in January 2013 moved the defendant's belongings to the basement while she was out of the country. Upon her return, the defendant and children occupied the basement. The parties agreed on 27 March 2014 that their marriage had irretrievably broken down and agreed to refer custody, maintenance and asset distribution to trial. In February 2015, the defendant left the family home with the three minor children following continued acrimony, particularly involving the plaintiff's mother who lived with them. In March 2015, the plaintiff was ordered to pay maintenance pendente lite. In October 2016, the parties settled all issues except custody of the minor children. The children were placed in boarding school in May 2017 as weekly boarders. The decree of divorce was granted on 6 April 2017, with custody reserved for determination.

• What is in the best interests of the three minor children regarding custody?
• What weight should be given to the emotional attachment between the children and each parent?
• What relevance does the statutory guardianship rights under section 5 of the Guardianship of Minors Act [Chapter 5:08] have in determining custody?
• What weight should be given to expert psychological evidence in custody determinations?
• How should the respective parenting abilities and availability of each parent be assessed?

1. Custody of the three minor children (Keyan Ross Waters, born 17 December 2006, Aydan Ian Waters, born 29 February 2008 and Quillan Rohit Waters born 11 September 2010) granted to the defendant, Aparna Waters. 2. The plaintiff ordered to pay the defendant's costs of the trial.

In determining custody of minor children, the paramount consideration is the best interests of the child. Key factors include: (1) the degree of emotional attachment between the children and each parent, particularly for children of tender years who require maternal emotional nurturing; (2) the actual time spent with and involvement in the children's lives, including school activities and day-to-day care; (3) the availability and ability of each parent to provide consistent care without depending heavily on third parties; (4) evidence of the parenting style and psychological fitness of each parent; (5) the wishes and comfort level of the children; (6) the absence of ill-treatment or risk thereof; (7) the de facto custodian status and statutory guardianship rights under section 5 of the Guardianship of Minors Act [Chapter 5:08]. Expert psychological evidence is highly relevant and persuasive in assessing these factors. Financial provision alone does not determine who is the better custodian parent. The court should not interfere with an established emotional bond between parent and children unless it is not in the children's best interests.

The court observed that the defendant and children sharing a bedroom at the Ridge House was likely caused by the defendant's perceived alienation by the plaintiff's extended family, particularly the plaintiff's mother who lived with them and openly did not get along with the defendant, making the defendant's bedroom a place of refuge. The court noted that the boarding school arrangement already agreed by the parties should actually have resolved the custody issue, as it addressed the concerns about the defendant's school involvement and provided extensive access rights to the plaintiff to create a positive image of himself as a parent. The court commented that it is up to the plaintiff to use the extensive access rights to create a positive parental image with the children. The court acknowledged that while the defendant was "by no means perfect," her deficiencies were consistent with being a victim of spousal emotional abuse. The court expressed satisfaction that in the defendant's independent home, the children now had their own bedrooms and were no longer sharing a bedroom with their mother.

This case is significant in Zimbabwean family law as it demonstrates the application of the best interests of the child principle in custody disputes. It emphasizes the importance of emotional attachment between parent and child, particularly for children of tender years, as established in Jere v Chitsunge. The case illustrates how courts assess parental fitness by examining actual involvement in children's lives, availability, parenting style, and psychological evidence. It also shows the weight given to expert psychological evidence in custody determinations and reinforces that financial provision alone does not make one the better custodian parent. The judgment recognizes that the statutory guardianship rights under section 5 of the Guardianship of Minors Act accrue to the parent who has been the de facto custodian. It further demonstrates how boarding school arrangements and detailed access rights can address concerns about parental deficiencies while preserving the primary emotional bond between children and the custodian parent.