W L C v D K M

This is a custody variation application concerning two minor male children aged ten and eight. Upon the parents' divorce in 2018, custody was granted by consent to the respondent mother, with the applicant father receiving supervised access every last Sunday of the month from 12 to 4 pm. The father sought variation based on changed circumstances, claiming he had overcome previous mental health issues and unstable accommodation, had remarried, and now had a stable home. He alleged the mother withdrew the children from school in 2024 for homeschooling. In 2025, he took the children during a school weekend and enrolled them at a different school (Arcorn Foundation Primary) without returning them to their original school (Oaktree Preparatory School). The mother opposed the application, citing the father's history of violence during their marriage (which led to eight miscarriages), a post-divorce incident where he smashed her car windows with the children inside, and his ongoing criminal fraud charges related to a Ponzi scheme for which he is currently on bail. She explained she withdrew the children from school due to financial difficulties, partly because the father failed to pay his share of fees despite a maintenance order. Social Welfare reports from both Norton (where mother resides) and Harare (where father resides) were obtained, both describing suitable living environments but noting the children's expressed preference to stay with their mother.

• Whether there were changed circumstances justifying variation of the custody order
• Whether it is in the best interests of the children to vary custody from the mother to the father
• What weight should be given to the history of domestic violence in determining custody
• What weight should be given to the children's expressed preference
• What access arrangements are appropriate given the circumstances

1. Custody of the minor children remains with their mother Diana Masunda (the respondent), subject to the condition that she provide proof within 48 hours that the children have been re-enrolled at the school they were attending before their removal by their father. If she fails to do so, the children shall complete their 2025 academic year at Arcon College while she exercises access every alternative weekend from Friday after school till Sunday at 17:00. 2. The applicant father shall exercise unsupervised access as follows: (a) Every alternate weekend from Friday after school to Sunday 17:00 hrs during term time; (b) Two weeks at the beginning of every school holiday with the parties alternating during special holidays and birthdays. 3. Both parents shall attend co-parenting counselling with a registered psychologist to develop a child-focused communication protocol. 4. The two minor children shall undergo individual therapy with a child psychologist to address harm caused by parental conflict. 5. No order as to costs.

In applications for variation of custody, the court must be satisfied on a balance of probabilities that variation is in the best interests of the child rather than maintaining the status quo. The court should not easily deprive a custodian parent of custody where there is little justification for doing so. A history of domestic violence is highly relevant to custody determinations because it raises concerns about safety, the potential for disciplining through violence, and the risk that children may learn to emulate abusive behavior in resolving conflicts. Courts must look beyond appearances and not delegitimize a mother's safety concerns or characterize her as emotionally unstable without considering the long-term impact of abuse. The absence of documented reports of violence prior to separation does not mean violence did not occur, as abused women generally do not seek help before separation. Best interests of the child must be assessed considering all relevant factors including: the strength of emotional bonds developed through long-term primary care; the ability to communicate with and understand the child's feelings; the parent's ability to provide material, educational and emotional support; and the relative stability of each parent's circumstances, including potential risks such as pending criminal charges that could result in imprisonment. While a father's right to access should not be unduly curtailed where there is no evidence of direct harm to the children, primary custody should remain with the parent who has been the primary caregiver where the totality of circumstances supports this as being in the children's best interests.

The court made several important observations beyond the binding principle: (1) One reason men often insist on having primary custody is to avoid paying maintenance to the mother. (2) The fact that a father's current wife does not complain of violence may be explained by protective factors such as her parents living with them, rather than evidencing absence of violent tendencies. (3) Acquittal in criminal proceedings does not necessarily mean domestic violence did not occur. (4) Current importance placed on father-child relationships often results in assessors focusing more on mothers as uncooperative or alienating instead of recognizing the real dynamics of domestic violence on custody arrangements. (5) The court referenced Alice Armstrong's work "Culture and Choice: Lessons from Survivors of Gender Violence in Zimbabwe" (2000) regarding the pattern that abused women generally do not seek help prior to separation. (6) The court noted that assessors need to be cautious about concluding that children have been "coached" based solely on their use of language deemed above their age, without fuller analysis of the content and context of their statements. (7) The court observed that the father appears to have "a public and private persona that are irreconcilable" given his presentation in court versus the fraud charges he faces.

This case is significant in Zimbabwean family law for its progressive approach to considering domestic violence in custody determinations. It rejects the tendency to view mothers who resist father involvement as merely alienating or uncooperative, instead recognizing that concerns rooted in a history of violence are legitimate and relevant to custody decisions. The judgment emphasizes that the modern focus on father-child relationships should not come at the expense of ignoring domestic violence dynamics. It also demonstrates judicial recognition that lack of documented reports of violence prior to separation is common and does not mean violence did not occur. The case reinforces that while changed circumstances may justify variation of access arrangements, the primary consideration remains the best interests of the child, assessed holistically against all relevant factors including safety, stability, emotional bonds, and the children's expressed preferences. The requirement for both co-parenting counselling and individual therapy for the children reflects a modern, trauma-informed approach to post-separation parenting arrangements.