Stoyke v Stoyke (Appeal 67 of 1998) [1999] ZMSC 73 (4 February 1999)

Appeal No. 67 of 1998 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Divorce Jurisdiction) BETWEEN: JOBSI ULRICH STOYKE APPELLANT AND CLEOTHA ILONA EMILY STOYKE RESPONDENT Coram: Chaila, Chirwa, Lewanika, JJS. 15th October, 1998 and 4th February, 1999 For the Appellant: M. C. Ngenda, Christopher, Russell Cook & Co. For the Respondent: M. Lisimba, H. M. Associates JUDGMENT Lewanika, JS. delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court granting custody of the infant son of the marriage to the respondent. The parties were married on 11th June, 1992 and the infant MARIC-KAL STOYKE was born on 12th August, 1992. Regrettably, matrimonial difficulties arose between the parties which led to rather acrimonious divorce proceedings instituted by the appellant against the respondent. The evidence on record is that the parties separated when the infant was about two years old and that the respondent had actual custody of the infant and the appellant had liberal access as he would at times keep the infant at weekends. In the proceedings in the court below the learned trial Judge found that both parents loved the child, that neither of them could be said to be a bad parent, that both were in a position to sustain the chile materially although the appellant had more financial resources than the respondent. The J2 learned trial Judge having taken all these considerations into account came to the view that the best interests of the infant would be better served by the infant remaining in the custody of the respondent, he accordingly granted custody to the respondent with liberal access to the appellant and it is against tnis order that the appellant appealed. Counsel for the appellant has filed three grounds of appeal namely 1. That the learned trial Judge misdirected himself in point of fact and law when he concluded that the respondent was a fit person to have custody, care and control of the only child of the marriage as this was against the weight of the evidence as to the character of the respondent as revealed at the main trial. In arguing this ground counsel said that the court had alluded to the conduct of the parties as a factor to be considered in awarding custody, the court in finding the respondent a fit person to have care and control of the infant contradicted itself having earlier found the respondent to have been a "vicious , contentious domineering woman with ungovernable temper and a woman without decorum," He said that if the welfare of the child is taken to include the moral, emotional, physical and mental well being of the child, then a woman with a temper and of a mind of culture described by the court below cannot be said to be a fit person to entrust to foster the moral upbringing of the infant herein. He said that the appellant who was found to be a long suffering, thick skinned and a man of culture ought to have tipped the scales in his favour as to who between the two parties was fit to have custody, care and control of the infant having regard to the welfare of the infant, taking welfare in its widest sense to include moral upbringing of the infant. J3 2. That the learned trial Judge erred when he concluded that •‘tearing’’ away the Infant from its mother when the infant was only 4 years old at the time would have entailed emotional suffering on the part of the infant as this negated the finding that the infant would during the material time stay away from the mother whilst with the father and without problems. In arguing this ground counsel said that although it is desirable that a child of tender years be with its mother, there Is no settled rule that this should be so in all cases. He said that there was uncontroverted evidence on record that the child in question had fondness for the father and would occasionally spend time with the father away from its mother. He said that even assuming that parting with its mother would have been distres­ sing to the child such feelings are transient and would pass with time and adaptation to new sorroundlngs and associations. See in RE THAIN V. TAYLOR 1926 A. E. R. (reprint) 384. 3. That the trial court erred by failing to take into account the wishes of a blameless parent and other factors before awarding custody to the respondent who was the cause to the break up in the marriage. In arguing this ground counsel for the appellant said that the wishes of an innocent party to the divorce ought to have taken precedence In the matter of custody, care and control of the child. In the instant case the cause for the break down of the marriage 1$ the respondent due to her unstable emotional being. He said that on the facts as found in the lower court, the respondent is not a good mother and should not be entrusted with the important responsibility of nurturing the moral and proper character upbringing of the infant herein. He said that to be a good mother involves not only an ability to look after the J4 children but making and keeping a home for the children, bringing up the children in love and security of the home with both parents. That in so far as the wife is herself by her conduct the cause of the breaking up of the home, she cannot be said to be a good mother. See RE. L. INFANTS, 1962, 3. A. E. R. P. 3. He said that in the instant case the conduct of the respondent was such that she could not keep the home intact and to that extent, she is a bad mother and not worthy of carrying the onerous responsibility of bringing up and nurturing a child into a responsible citizen, lie said that this fact ought to have weighed heavily in favour of the appellant for the order of custody, care ana control and urged us to allow the appeal and set aside the order of the court below. In reply counsel for the respondent submitted that the learneo trial Judge properly directed himself on points of law ano fact when ne concluded tnat the respondent was a fit person to have custody of tiie child. He said tnat the finaincs of cue learned trial Judge in the- divorce proceedings snculd have no bearing on tiie issue of custody. He referred us to tne Ibtn Edition of RAYDEN ON DIVORCE, PARA 407 on page 1006 Oil lh: ''uiiib. he SUid that the paramount consideration is Lite welfare of c;ie child winch cannot be measured in monttory terms c-r pii/sicd Gcmforc. he said tnac cne appeiJuiit nas nov shown Ltiat the respunoent is iiicapaoic: of nurturing cue obii'i, and tiiac biK.-rr. v.-as no avidanue on recora that co? respondedc was net a fit persdh. ro saiu iurtner 'tiiet ir cue Cwurt yI'ouls custouy co Li;a cpreiiant and c:m af-pel 1 jhc leaves die jurisuiccion too respenoent WOUlG UCVu 1. 1 if iCUt L‘; ill aCCOSSlir the CliTlu. I' C Sait.’ CUct it WGUK: IOC jc lii t.i • U-eSc I'lCei’UStS Ui LUa CU11C CO .;0:Ul CUSOuay Ui tnl’ Ciilic CC lhc jnO UCgtU US CO UiSClSS Cue i‘?giy counsel i or cue nr:Ii«. H Sdia “fi^u locrii -d Li'idl CUGgd UcC 0 -.'T LfC G LU L-’i..- ici 1.01 Ui Uli: n jCClCS I ■ i UlS J5 judgment and that the possibility of the appellant taking the child out of the jurisdiction is highly speculative. He also said that the child would be able to decide where It wants to be in the future and that there was evidence on record that the child used to visit both parties when they were on separation. We have considered the submissions of counsel for the appellant and for the respondent and the evidence on record. From the evidence on record it is quite clear that both parents love the infant and that each one of them would clearly love to have custody and care and control of him. The general principle regarding custody of children is that the paramount consideration is the welfare of the child. It has been said that the welfare of the child is not to be measured by money only nor by physical comfort only, the moral and religious welfare of the child must be considered as well as his physical wellbeing, nor can the ties of affection be disregarded. The rights and wishes of parents must be assessed and weighed in their bearing on the welfare of the child in conjunction with all other factors relative to that issue. The question for the Judge to ask is not what the essential justice of the case requires but what the best interests of the child require. In this case although the parties went through the rather acrimonious divorce proceedings in the course of which a lot ofheat was generated on both sides, from the evidence on record it is clear that both of them are loving parents who wish nothing but the best for the infant. We do not agree that the evidence on record discloses that the respondent is not a fit person to have custody of the child. We would agree with the learned trial Judge that taking into account all the relative factors we have referred to and in particular the tender age of the infant the best interests of the child would be better served if he remained J6 in the custody of the mother, the respondent. In coming to this decision we are mindful of the fact that custody orders cannot be permanent and can be varied from time to time at circumstances of the parents change. The petitioner has to have liberal access as ordered by the learned trial Judge. For the reasons we have given we are dismissing the appeal with costs. The costs are to be taxed in default of agreement. M. S. Chaila SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE D. N. Lewanika SUPREME COURT JUDGE