As one can logically assume, the issue of child custody is raised when a marriage, out of which a child has been conceived or recognized by law, is dissolved by divorce. It is the situation where by a minor child is entrusted to the care of a parent who will from then on have the right to determine how the child is raised.
Custody law in Ethiopia has its basis and major guidelines under Article 113 of the Revised Family Code. The matter of Custody shall be considered and decided by the court, taking into account the best interests of the child. This is apparent in the guidelines for deciding and custody. When it deems it necessary, the court may revise or reverse its decision concerning the custody and maintenance of the child.
Custody may be awarded either to the father or the mother, whoever is found more capable. However, concerning children below the age of five, article 681(2) of the repealed family section of the civil code is applicable, customarily, and grants the mother sole custody unless she is found to be grossly incompetent.
Applicability of the law
Despite the importance of child custody, the current law gives it very little regard. There is only one article in the Revised Family Code that deals with child custody and it is very general one. Even though this article is an improvement from the previous law, leaving custody matters to the court instead of family arbitrators, who could easily get biased by family or friendship ties, it lacks effectiveness in other aspects.
Primarily, it lays too much burden on the courts, because now it is the duty of the courts to ascertain the income, age, living conditions of the spouses concerned. This wide range of duties takes up the time and man power especially of an office of government that would have hundreds of similar cases pending. Decisions could, therefore, be very much delayed. And since the courts are distanced third parties to such dispute, their lack of deep knowledge makes it easy for any one of such spouses to conceal information like ones monetary or health status or underlying abusive behaviors. Under such instances, a group of arbitration could have provided a neutral more detailed and firsthand look of the existent situation and this would have helped but the law makes no such provision.
The general nature of this article could also create misunderstandings in the relations that parties as regards the child concerned even after separation. Because the law is vague and the separated spouses usually exist under a state of animosity, unless a detailed decision is passed by the court, it will be constantly pestered by the parties when disagreements arise concerning the schooling of the child, any extracurricular activities the child pursues, what to do when the parent entrusted with custody (joint or shared) decides to move to a new location… etc, being yet another source of inconvenience to an already exhausted set of people.
Suggested improvements could include a set of arbitrators like ones assimilated in martial disputes that would have no decision making capacities and have the sole duty of compiling information from both spouses and anyone else they deem to have sufficient information. This would serve as additional input to the courts’ decision.
A set of guide lines regarding custody should also be provided in addition to this article. Specific issues, like the types and definitions of custody available (sole, joint, shared or split custody), visitation and the conditions under which it is applied, relocation of children and the consequences there of, testimonies of children concerned, how they are obtained what they imply or other additional issues that need clarification should be provided for so that the courts may provide a less arbitrary and relatively more uniform decision.
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