The law and practice of child custody after divorce in Anglophone Cameroon

Matters dealing with post-divorce upbringing of children in Cameroon fall under two jurisdictions - statutory law and customary law. Custody issues arising from statutory marriage divorce are entertained in statutory courts. Determination of post-divorce upbringing of children in customary marriage divorce is done either in Customary Courts or extra-judicially, in the villages.

The English welfare principle stated in the Guardianship of Minors Act 1971 is the law under which statutory courts have to make custody decisions. The practice of the courts, however, does not conform with stated law. The welfare of the child is balanced against customary law father’s rights over their children. Statutory court judges have incorporated the customary law rule which says that the father is "owner" of his legitimate children. Judges hold that, as a general rule, it is in the best interests of the child for the father to be awarded custody. This rule of thumb is qualified by the age of the child and the existence of an obvious danger to the child if custody is granted to a father. The judges prefer to award custody of the young ones to their mother. This work has established, however, that the primary concern of the judiciary is not to protect the welfare of the child. Rather, it is to uphold cultural values demonstrated by the influence of customary law father’s right in custody adjudication. The work has also illuminated the fact that custody decisions based on customary law father’s custody right are not made for the welfare of the child.

As regards children in customary marriage divorce, there is a dual legal framework. Where divorce is obtained in Customary Courts, the Customary Court Rules 1965 are to determine custody decision-making. Under the Customary Court Rules, the welfare of the child is stated as the first and paramount consideration in custody adjudication. In practice, however, determination of post-divorce upbringing in Customary Courts is nearly the same as it is in cases of extra-judicial divorce.

Where a marriage is terminated extra-judicially, indigenous customary law rules determine the upbringing of children. The general rule is that, children of a validly celebrated customary marriage "belong" to their father. Usually, nothing is said about the children: it is presumed that the paternity rule is known and will be followed. As in statutory law, young children are "left" to their mother until they attain the age at which they are transferred to their father. There is no concept of custody in indigenous customary law.

The main focus of this thesis is to expose the Cameroonian custody reality. It involves examining the gap between the statutory legal framework and judicial practice. It also deals with the difference between the Customary Court Rules and the practice of Customary Courts. The thesis discusses and analyses why that difference in law and practice exists. In addition, the absence of a concept of custody in indigenous customary law of "divorce" and the effect of this on the children involved are examined.

This work finds that, as a general rule, custody adjudication in Cameroon is not child centred.