(b) where a guardian has been appointed to a minor by the father to act jointly with the mother;
upon the application of the other parent or of the guardian or mother, as the case may be, made after the death of
the testator, make such order in regard to the guardianship or custody of the minor as the court or judge may
consider to be in the best interests of the minor.
(6) A disposition made by a parent in terms of paragraph (a) or (b) of subsection (3) shall cease to be of any
effect if during his lifetime that parent ceases to be the sole guardian or, as the case may be, is no longer vested
with the custody of the minor concerned.
(7) A wife may make any application referred to in this section, and any application to a court in connection
therewith, without the assistance of her husband.
5 Special provisions relating to custody of minors
(1) Where either of the parents of a minor leaves the other and such parents commence to live apart, the
mother of that minor shall have the sole custody of that minor until an order regulating the custody of that minor is
made under section four or this section or by a superior court such as is referred to in subparagraph (ii) of paragraph (a) of subsection (7).
(2) Where—
(a) the mother of a minor has the sole custody of that minor in terms of subsection (1); and
(b) the father or some other person removes the minor from the custody of the mother or otherwise denies
the mother the custody of that minor;
the mother may apply to a children’s court for an order declaring that she has the sole custody of that minor in
terms of subsection (1) and, upon such application, the children’s court may make an order declaring that the
mother has the sole custody of that minor and, if necessary, directing the father or, as the case may be, the other
person to return that minor to the custody of the mother.
[Subsection amended by section 49 of act 23 of 2001]
(3) Where the mother of a minor has the sole custody of that minor in terms of subsection (1), a children’s
court may at any time, upon the application—
(a) of the mother, make an order directing the father to pay, either weekly or monthly, to the applicant such
reasonable sum for the maintenance of that minor as the court thinks fit; or
(b) of the father, make an order depriving the mother of the sole custody of the minor and granting the sole
custody of the father if the court is satisfied that it is in the best interests of that minor that the father be
granted the sole custody of that minor and, further, make such order relating to the payment of maintenance by the mother and the right of the mother to have access to that minor as the court thinks fit; or
(c) of the father, make an order for the father to have such access to that minor as the court specifies as
being reasonable in the circumstances, unless the court is of the opinion that it would be detrimental to
the welfare or interests of that minor for the father to have any right to access; or
(d) of either parent, make such order in regard to the custody of that minor, the payment of maintenance for
and the right of access to that minor as will give effect to the terms of any settlement reached between
the parents of that minor.
[Subsection amended by section 49 of act 23 of 2001]
(4) An application in terms of subsection (2) or (3) may be made to any children’s court and that court may,
at any stage of the proceedings—
(a) remit the matter to another children’s court for the taking of evidence; or
(b) transfer the application to another children’s court for the determination of that application by that
children’s court.
[Subsection amended by section 49 of act 23 of 2001]
(5) The Maintenance Act [Chapter 5:09] shall apply, mutatis mutandis, in relation to an order for maintenance referred to in subsection (3) as if it were an order for maintenance referred to in section 6 of the Maintenance Act [Chapter 5:09].
(6) If, upon an application made in terms of subsection (2) or (3), the children’s court is sati sfied that both
parents are unfit to have custody of the minor, it may make an order in terms of subparagraph (i), (ii), (iv), (v) or
(vi) of subsection (1) of section 20 of the Children’s Act [Chapter 5:06] in respect of the minor.
[Subsection amended by section 49 of act 23 of 2001]
(7) An order of a children’s court made in terms of subsection (2) or (3) shall cease to be of effect—
(a) if and when any order regulating the custody of the minor concerned is made—
(i) in terms of section four; or
(ii) by a superior court of competent jurisdiction outside Zimbabwe as a result of proceedings for
divorce or judicial separation before such court; or
(b) if the parents become reconciled and live together again as husband and wife, with effect from the date
on which the parents commence to live together again.
[Subsection amended by section 49 of act 23 of 2001]