HOW TO GET A CHILD CUSTODY ORDER IN THE CAMEROON BIJURAL SYSTEM OF THE COMMON LAW AND CIVIL LAW
Child custody in Cameroon is a legal arrangement determining a child's living arrangements and decision-making authority between parents, typically after a separation or divorce. Understanding how to get a child custody order in Cameroon entails the mastery of the child custody regime under the Common Law and Civil Law jurisdiction of Cameroon.
LEGAL FRAMEWORK FOR A CHILD CUSTODY ORDER IN CAMEROON
The legal framework regulating child custody order in Cameroon is based on the bijural system of Cameroon to with: the Civil Law applicable to the French speaking regions of Cameroon and the Common Law applicable to the English-speaking regions of Cameroon.
- Civil law framework on child custody in Cameroon
- Child custody in the civil law jurisdiction of Cameroon is regulated by section 240 of the Cameroon civil code. Section 240 of the Cameroonian Civil Code empowers the court to order provisional measures, including temporary custody of children, upon the request of an interested party, a family member, the public prosecutor, or even on its own initiative if it deems it to be in the best interests of the children. The court may also rule on applications for child support during the proceedings and other urgent measures.
- . Permanent Custody of Children: When the divorce is finalized, article 302 of the Cameroonian civil code specifies that the children will generally be entrusted to the spouse who obtained the divorce. However, the court may decide otherwise, taking into account the best interests of the children and the information gathered in accordance with Article 238. The aim is to ensure that the custody decision is made in the best interests of the children, rather than following an automatic rule.
- Common law framework on child custody in Cameroon
- Child custody applications before the common law jurisdiction of Cameroon is grounded by section 18 (1) (B) of Law No 2006/015, the Civil Status Registration Ordinance No 81-02 of 29th June 1981 as amended by Law No 2011/011 of 6th May 2011 and the Section 71 of the Matrimonial Causes Act 1973.
IS CHILD CUSTODY IN CAMEROON GRANTED UNDER THE SAME CIRCUMSTANCES IN THE CIVIL LAW AND COMMON LAW COURTS OF CAMEROON?
Both the Civil Code (Section 240 and 302) applicable in the civil law jurisdiction of Cameroon and Matrimonial Causes Act 1973 applicable in the common law jurisdiction of Cameroon stipulate that child custody in Cameroon is granted under circumstances of proceedings related to Divorce, Judicial Separation and Nullity of Marriage.
REGIME OF CHILD CUSTODY IN CAMEROON
- Custody under the Marriage Regime of Cameroon
Child custody in Cameroon under the marriage regime is usually within the context of a divorce process or a process of judicial separation as both the Civil law and the Common Law courts of Cameroon emphasise on the need to secure the best interest of the child born to the married couple before pronouncement the divorce of separation order. In this regard, Section 240 and 302 of the Cameroon Civil Code, and Section 17 of the Matrimonial Causes Act 1973 are applicable in the Civil Courts and Common law Courts of Cameroon.
- Custody under the Celibacy Regime of Cameroon
Child custody in Cameroon for children born out of wedlock meaning both parents to the child are not married is usually granted to the mother of the child. However, there are circumstances in which custody is granted to the father of the child or any other family member in so far as the best interest of the child is guaranteed.
The major aspect of child custody in Cameroon under the unmarried regime is the role played by the Social Welfare Service to determine the suitability of the applicant and this is usually established through a Social Inquiry Report.
- Child Custody from an Orphanage in Cameroon
Child custody from an orphanage in Cameroon has two major steps;
First the Administrative step which entails the role to be played by the orphanage and the social welfare service of Cameroon, and
Second, the Legal step which entails the application before the courts of Cameroon which is on the basis of the favourable report from the administrative bureau of social welfare service.
WHAT IS THE PRINCIPLE OF BEST INTEREST OF THE CHILD IN A CUSTODY APPLICATION BEFORE THE CAMEROON COURTS?
The "best interests of the child" principle is a legal standard that requires courts in Cameroon to prioritize a child's overall well-being, growth, and development when making custody decisions. Courts in Cameroon in application of the Civil Code of Cameroon or Matrimonial Causes Act 1973 consider various factors, such as the child's physical and emotional health, the stability of the home environment, the quality of the relationship with each parent, the parents' ability to cooperate, and the child's own preferences (depending on age).
- Factors considered by the Courts as regards the principle of the Best Interest of the Child in Cameroon
The following factors are considered by the courts of Cameroon when evaluating the best interest of the child principle:
- Stability of the Child
- Well-being of the Child
- Parental Relationship and Ability
- Preference of the Child
- Safety
TYPES OF CHILD CUSTODY GRANTS IN CAMEROON
There are several types of custody in Cameroon. However, custody in first divided into two scopes. Legal Custody and Physical Custody.
1. LEGAL CUSTODY
Legal custody is based on who makes important decisions for the child in cases such as health care, education and welfare. Legal custody can be joint or sole in nature.
It is joint where both parents share the right and responsibility to make important decisions about the health, education and welfare of the child.
It is sole where only 1 parent has the right and responsibility to make the important decisions about health, education and welfare of the child.
2. PHYSICAL CUSTODY
Physical custody is based on who the child lives with. Physical custody can also be joint or sole in nature. Physical custody can take the various forms;
Sole custody: an arrangement whereby only one parent has physical custody of the child. The other non-custodial parent has just regular visitation rights.
Joint physical custody: also known as shared parenting is an arrangement in which both parents have the child for approximately equal amount of time especially where they are both custodial parents.
Split custody: this is an arrangement in which one parent has sole custody over some children and the other parent has sole custody over the remaining children.
Third party custody: an arrangement whereby the children do not remain with either biological parent and is placed under the custody of a third person.
Divided custody: this is the type of custody whereby the child lives for an extended period of time with one parent and an alternate amount of time with the other parent.
IMPORTANCE OF AN AMICABLE SETTLEMENT DOCUMENT SIGNED BY PARTIES TO A CHILD CUSTODY CASE IN CAMEROON
Consent between the parties to a custody matter in Cameroon is aimed at avoiding unnecessary disputes before the court. When parents to a child are at disagreement over who should be granted custody, they are at the mercy of the decision of the court which may in some cases not favour either parent. It is advisable based on experience for the parents to sign a settlement document in which the matters of the custody of the child will be addressed.
- Advantage of an Amicable Settlement Document in a Child Custody Matter in Cameroon
- Avoids unnecessary and Lengthy Court Proceedings
- Ensures the stability of the child
- Creates the legal foundation for the court order
- Protects the integrity of both parents
IMPORTANCE OF PARENTAL CONSENT IN A THIRD-PARTY CUSTODY APPLICATION IN CAMEROON
This involves consent given in favour of a third party who applies for the child custody order before the Cameroon courts. The importance of obtaining such parental consent is as follows:
- Consent orders are built on the parents' agreement. They are not a judgment from a court but an agreement that has been approved by a judge, which makes the agreement legally enforceable.
- Parental Consent creates the foundation upon which the court can adjudicate on a third-party custody matter as both parents agree for their child to be under the custody of the third person.
- Parental consent erodes every presumption of fraud in the third-party custody application.
CONDITIONS FOR THE GRANT OF A CHILD CUSTODY APPLICATION IN CAMEROON
- The Welfare of the Child: The welfare of the child is of paramount importance for the custody order to be granted by the Cameroon court.
- Parental Stability: The parent has as condition to proof that he/she has the stability required mentally and otherwise to care for the child. This is usually through a medical report.
- Parental relationship with the child: The parent must proof the strong bond with the child in question.
- Age of the child: More tender children are deemed to be more attached to their mothers than older children who have a stronger emotional balance.
- Living conditions of the parent: The parent must show proof of favourable living conditions to care for the child and guarantee the upkeep.
PROCEDURE FOR CHILD CUSTODY IN CAMEROON
Documents Required
Copy of the Applicant’s birth certificate, identity card and passport.
Copy of birth certificate of the child.
Copy of medical certificate of fitness of the applicant.
Copy of morality report of applicant.
Copy of non-crime certificate/non-conviction of applicant.
Copy of bank statement of applicant.
Court Filing Process
The family solicitor will file an originating motion on notice.
A support statement will also be filed.
The State prosecutor will be notified for his submission against any child trafficking process.
The family solicitor will move the court on his originating motion and supporting documents.
The court will then grant the custody order.
CONDITIONS FOR THE REFUSAL OF A CUSTODY APPLICATION IN CAMEROON
The are certain conditions which when present will lead to the refusal or modification of a child custody order in Cameroon. These are conditions which do not guarantee the best interest of the child which is the fundamental ground on which a custody order if granted. They are as follows:
Child Abuse or Neglect: Any form of physical, sexual, or emotional abuse, or a failure to provide for the child's basic needs such as food, clothing, safe living conditions, medical care, is a primary reason for a court in Cameroon to deny custody.
Substance Abuse in presence of the Child: Drug or alcohol abuse that impairs a parent's ability to care for the child or is conducted in the child's presence can be grounds for refusal or supervised visitation.
Domestic Violence: Evidence of domestic violence, whether directed at the child or another family member, will result in courts limiting or denying custody rights to protect the child's safety. This is in a bid to avoid the child suffering from trauma.
Parental Unfitness: A parent may be deemed unfit if they are incapable of providing a stable, healthy environment, have a significant criminal record, or exhibit other serious shortcomings that endanger the child's welfare in Cameroon. This is the reason for which a medical report attesting to the fitness of the parent and the proof of clean criminal record is requested during the custody hearing before the courts in Cameroon.
Violation of Court Orders: Some custody orders are accompanied by some court orders to be respected by the parties to the custody matter. Willful and consistent disobedience of existing custody or visitation orders (e.g., refusing court-ordered visitation, consistently missing exchanges, moving without court approval) can lead to a finding of contempt of court and potentially a loss of custody over the child.
Parental Alienation/Refusal to Co-Parent: Actively attempting to damage the child's relationship with the other parent (parental alienation), or a consistent refusal to co-parent and make joint decisions when required by a court order, can negatively impact a custody case.
Child Abduction or Flight Risk: If there is a fear of child abduction, or a history of a parent taking the child out of state or country without permission, the court may refuse custody or require significant safeguards.
Unsafe Living Conditions: Hazardous or otherwise dangerous living conditions that put the child's health or safety at risk are grounds for court intervention.
DIFFERENCE BETWEEN CHILD CUSTODY AND GUARDIANSHIP IN CAMEROON
The main difference is that custody in Cameroon generally refers to the legal relationship between a child and their parents, while guardianship in Cameroon is a legal relationship for a child with a non-parent who is appointed by a court to care for them. Custody arrangements in Cameroon, like those made after a divorce, divide a child's care between parents, whereas guardianship is typically for when parents are unable to care for the child.
PROOF OF A SUCCESSFUL CHILD CUSTODY GRANT IN CAMEROON
Proof of a successful child custody grant in Cameroon is the official court order granting custody. Supporting evidence to demonstrate that custody is being successfully maintained includes documents like school and medical records, financial records, and detailed logs of communication and activities with the child.
- Legal Proof: The custody order granted by the Cameroon High Court.
- Physical Proof: The handing over of the child to the applicant.
CASE STUDIES FOR CHILD CUSTODY IN CAMEROON
Refusal of Custody Grant: Dawodu v Dawodu in which case custody was denied to a mother due to lack of a home and means for the upkeep of the child.
Principle for Custody of a Child Born out of Wedlock: Muojekwu v Ejikeme in which case the Appeal Court stated that “the custody of a child born out of wedlock is naturally given to the mother in the absence of any claim by the natural father.