Custody of a child is usually a concern when a couple decides to petition for a divorce or that they are no more living together. Before the divorce, both parents will have full parental rights and responsibilities if nothing has been decided yet by the court pending the divorce procedures. The parents will still be equal guardians after the divorce even f they live apart.
For the determination of the custody it is the Supreme Court(Family Division) that will adjudicate upon who will be the main care-giver( the parent with whom the child will primarily reside) of the child. In situations where the parents of a child are no more living together and each of them is seeking custody, the approach of the court is that there should be an attempt at reconciling the interests of the parents and all others concerned with those of the child which should however be regarded as the most important.
The principles taken into consideration upon an application being made by a parent who has obtained custody to take the child to settle down outside of the Republic of Mauritius are as follows:-
- Firstly, whether it is in the interest of the child to remain with the parent who has been granted custody;
- Secondly, whether the parent who has been given custody has a legitimate motive for desiring to live away from the country;
- Thirdly, whether any particular benefit which the child would derive from continuing to be with that parent would not be outweighed by the prejudice that might ensue to the child from the change in circumstances brought about ( the balancing exercise); and
- Lastly, whether suitable and adequate provision can be arranged for maintaining as far as possible contacts between the child and the other parent and family.
When taking into consideration all the principles above, the paramount factor that the court will take into account is where does the best interest of the child lies and where is the child's prospects the brightest.