Leaving the child in legal limbo

THE Children’s Status Bill, first tabled in Parliament in 2003, continues to invoke debate on who should have custody of children born outside marriage.

Currently, mothers have sole custody and guardianship of such children and fathers have no clear rights – not even a right to access. This position is clearly unfair to both parents and children.The previous amendments: After considering submissions from many NGOs, the Minister of Gender Equality and Child Welfare tabled an amendment on custody in mid-2006 which seemed to provide a compromise between the competing viewpoints.In terms of this, cohabiting parents could have joint custody and equal guardianship if they wished, just like married parents.Otherwise, one parent would have to take primary responsibility for the daily care of the child while the other parent would have access rights – just like divorced parents.The parents could make a written agreement on who would act as the primary custodian, or refer the matter to a children’s court for decision.As a default position, the mother would be the child’s temporary custodian – since only the mother (for obvious biological reasons) would definitely be present at the birth.This fall-back position was intended to protect the child as an interim measure, without prejudicing either parent.The new amendments: The latest proposals are apparently motivated by concerns that preferring either parent (even as a temporary safeguard) might be unconstitutional sex discrimination.Parents can still make an agreement between themselves on who will act as the primary custodian and guardian.If no agreement is reached, either parent (or someone else acting on the child’s behalf) can apply to the children’s court for a decision.If the child’s best interests are in danger of being compromised in the meantime, “the person who has physical custody of the child” can apply to any court (including a traditional tribunal) for interim custody.The interim order will remain in effect until the same court makes a final decision on custody.There is no default position.In the absence of an agreement or a court decision, the child will simply have no legal custodian or guardian.There will be no adult with legal authority to make decisions on behalf of the child.Cohabiting parents will not be allowed to agree to joint custody, even if they have lived together in a stable relationship for many years.The latest proposal is “gender-neutral” to a fault.But society is not yet gender-blind, and never can be when it comes to the biological facts of child-bearing and breast-feeding.Imagine the potential problems.* Where will the child stay until the matter is decided? The extra weight given to “physical custody” could encourage a tug of war between the parents, with the child being shuttled back and forth as each parent tries to race to court to request temporary custody.* Who will have a right to claim maintenance from the other parent? No one, if there is no agreement and no court order.If one parent asks for maintenance, the other parent can simply take the child – because both parents will have equal rights to custody in theory until the matter is resolved.* What will happen if a newborn child needs medical treatment? Neither parent will have clear legal authority to consent to medical procedures in the absence of an agreement or a court order.* What role will Namibia’s widespread domestic violence play in all this? A woman who is in fear is likely to “agree” to anything that will keep her and her children safe.* Furthermore, if traditional tribunals make decisions on custody, they are almost certain to be influenced by customary law in assessing what is in a child’s best interests – which may introduce elements of discrimination against women.The absence of a default position is very odd.If a couple enters a civil marriage without making an agreement on how to handle their property, a default marital property regime will apply.Property rights are too important to be left in uncertainty.But if two unmarried people have a child, the proposed scheme could leave that child without a custodian or a guardian for an indefinite period.Are we less concerned about children than property? Gender equality does not mean pretending that there are no differences between men and women.It does not require ignoring social realities or biological facts or the gendered nature of problems like domestic violence.Society should move towards more equal roles of men and women in child-rearing, by all means, but let us not sacrifice the best interests of our children in our haste.Parliament has spent a laudable amount of time and energy holding public hearings and discussing this bill.It would be a sad fate if the final law, which is designed to protect children, lands every child born outside of marriage in legal limbo.* Dianne Hubbard is Co-ordinator of the LAC’s Gender Research and Advocacy ProjectThis position is clearly unfair to both parents and children.The previous amendments: After considering submissions from many NGOs, the Minister of Gender Equality and Child Welfare tabled an amendment on custody in mid-2006 which seemed to provide a compromise between the competing viewpoints.In terms of this, cohabiting parents could have joint custody and equal guardianship if they wished, just like married parents.Otherwise, one parent would have to take primary responsibility for the daily care of the child while the other parent would have access rights – just like divorced parents.The parents could make a written agreement on who would act as the primary custodian, or refer the matter to a children’s court for decision.As a default position, the mother would be the child’s temporary custodian – since only the mother (for obvious biological reasons) would definitely be present at the birth.This fall-back position was intended to protect the child as an interim measure, without prejudicing either parent.The new amendments: The latest proposals are apparently motivated by concerns that preferring either parent (even as a temporary safeguard) might be unconstitutional sex discrimination.Parents can still make an agreement between themselves on who will act as the primary custodian and guardian.If no agreement is reached, either parent (or someone else acting on the child’s behalf) can apply to the children’s court for a decision.If the child’s best interests are in danger of being compromised in the meantime, “the person who has physical custody of the child” can apply to any court (including a traditional tribunal) for interim custody.The interim order will remain in effect until the same court makes a final decision on custody.There is no default position.In the absence of an agreement or a court decision, the child will simply have no legal custodian or guardian.There will be no adult with legal authority to make decisions on behalf of the child.Cohabiting parents will not be allowed to agree to joint custody, even if they have lived together in a stable relationship for many years.The latest proposal is “gender-neutral” to a fault.But society is not yet gender-blind, and never can be when it comes to the biological facts of child-bearing and breast-feeding.Imagine the potential problems.* Where will the child stay until the matter is decided? The extra weight given to “physical custody” could encourage a tug of war between the parents, with the child being shuttled back and forth as each parent tries to race to court to request temporary custody.* Who will have a right to claim maintenance from the other parent? No one, if there is no agreement and no court order.If one parent asks for maintenance, the other parent can simply take the child – because both parents will have equal rights to custody in theory until the matter is resolved.* What will happen if a newborn child needs medical treatment? Neither parent will have clear legal authority to consent to medical procedures in the absence of an agreement or a court order.* What role will Namibia’s widespread domestic violence play in all this? A woman who is in fear is likely to “agree” to anything that will keep her and her children safe.* Furthermore, if traditional tribunals make decisions on custody, they are almost certain to be influenced by customary law in assessing what is in a child’s best interests – which may introduce elements of discrimination against women.The absence of a default position is very odd.If a couple enters a civil marriage without making an agreement on how to handle their property, a default marital property regime will apply.Property rights are too important to be left in uncertainty.But if two unmarried people have a child, the proposed scheme could leave that child without a custodian or a guardian for an indefinite period.Are we less concerned about children than property? Gender equality does not mean pretending that there are no differences between men and women.It does not require ignoring social realities or biological facts or the gendered nature of problems like domestic violence.Society should move towards more equal roles of men and women in child-rearing, by all means, but let us not sacrifice the best interests of our children in our haste.Parliament has spent a laudable amount of time and energy holding public hearings and discussing this bill.It would be a sad fate if the final law, which is designed to protect children, lands every child born outside of marriage in legal limbo.* Dianne Hubbard is Co-ordinator of the LAC’s Gender Research and Advocacy Project