Child Custody In Nigeria: A Fallout Of Irretrievable Breakdown Of Marriages – Divorce

CHILD CUSTODY IN NIGERIA: A FALLOUT OF IRRETRIEVABLE BREAKDOWN
OF MARRIAGES1

1. Introduction

The astronomical rate of matrimonial causes in Nigeria has
become worrisome in recent times, a development which constantly
leaves the fate of children of such marriages hanging in the air as
some fundamental questions concerning the custody and welfare of
those children need to be first resolved by the courts.

Ordinarily, the types or forms of marriage such children are
born into would influence the relationship between parent and child
and ultimately determine who has the right to the child’s
custody in the event of separation or divorce. However,
irrespective of the type or form of marriage a child is born into,
the custody of the child is considered as a matter of
children’s rights.

At Common Law, a father had an absolute right to the custody of
his legitimate children until they attained the age of
majority.2 Even upon the father’s death, any claim
by their mother to custody could be defeated by the father’s
appointment of a testamentary guardian.

Custody is an important issue in divorce proceedings for the
obvious reason that it implicates the child’s welfare. It is a
vital tool in determining the welfare and best interest of the
child, although the word “custody” is neither defined in
the Matrimonial Causes Act of 19703 nor Child’s
Right Act of 2003. It has however, been defined by several authors
and the courts as follows:

The Black’s Law Dictionary4 defines custody as:
“the care, control and maintenance of a child which may be
awarded by a court to one of the parents as in a divorce or
separation proceeding.”5

The Court of Appeal also defined custody in the case of
Otti v. Otti,6 as:

“Essentially concerning control, preservation and care
of the child’s person, physically, mentally; it also includes
responsibility for a child in regard to his needs, food, clothing,
instruction and the like…”

More recently in Nwosu v. Nwosu,7
custody was defined as:

“The care, control and maintenance of a child awarded by a
court to a responsible adult. Custody involves legal custody
(decision making authority) and physical custody (care giving
authority), and an award of custody usually grants both
rights.”

Essentially, it can be deduced from the various definitions that
the custody of a child goes beyond physically having control of a
child as it covers the authority to make decisions for the
child’s wellbeing in all aspects. It is also settled fact that
a child is not a chattel which can be owned but a person who is
legally recognized from birth as having rights and entitled to make
claims although he/she may not be matured enough to take some
responsibilities. The interest of a child is a paramount
consideration in the issue of child custody.

2. Power of the Court to Entertain Child Custody Disputes

The Matrimonial Causes Act mainly governs
dissolution of marriage, custody, and the welfare of children in
Nigeria. Part IV of the Matrimonial Causes Act deals specifically
with the making of orders for maintenance, custody, and
settlements. The High Court is empowered under the law to make
various orders with respect to the husband, wife, and children of
the marriage. By the combined reading of Sections 2(1) & 114(1)
of the Matrimonial Causes Act,8 every High Court of each
Sate of the Federation and the Federal Capital Territory have
jurisdiction to hear and determine child custody disputes relating
to matrimonial causes.

For matters relating to matrimonial causes, the Matrimonial
Causes Act empowers the State High Court and High Court of the
Federal Capital Territory to make orders for child custody. Section
71 (1) of the Matrimonial Causes Act provides as follows:

“In the proceeding with respect to the custody,
guardianship, advancement or education of children of the marriage
the court shall regard the interest of those children as the
paramount consideration, and subject thereto the court may make
such order in respect to these matters as it thinks
proper.”

Apart from the provisions of the Matrimonial Causes
Act, the Child Rights Act of 2003 as well as the
Child Rights Laws of the various states in Nigeria, Customary
Courts Law, and Islamic Courts Law are also instructive to note
depending on the type of marriage in question.
However, it is important to mention that child custody disputes can
be matrimonial-causes related or not related to matrimonial
causes.

Having established the meaning of custody and the power and
jurisdiction of the courts to grant same, the next step is to
examine rights to custody of children born into statutory marriage,
customary marriage, or Islamic marriage.

  1. Custody of children born during the pendency of a statutory
    marriage is governed by the provisions of the Matrimonial Causes
    Act and the Child’s Rights Act of 2003 which is to the effect
    that the custody of the children is not automatically bestowed on
    any person but will be determined based on the best interest of the
    child. The position of the law stipulating that before a court
    makes an order for a child’s custody, both parents have an
    equal right to the custody of their childrenwas decided by
    the court in the case of Nwosu v
    Nwosu.
    9 Subject to the
    overriding principle stated under Section 71(1) of the Matrimonial
    Causes Act, the court may place the child in the custody of either
    of its parents as the court deems fit.
  2. Under most systems of customary law in Nigeria, the father has
    the absolute right to custody of his legitimate or legitimated
    children. On the death of the father, the custody of the child is
    vested in the male head of the father’s family, though the
    mother has unfettered rights over the day-to-day care of the
    child.10 However, various provisions of the law now
    render these customs invalid, particularly, if granting custody to
    the father will not be in the best interest of the child as it was
    decided in the case of Febisola Okwueze v. Paul
    Okwueze,
    11 where the
    Court held inter alia:
    “Under most systems of customary law in Nigeria,
    the father of a legitimate or legitimized child has absolute right
    of custody of the child. Though the superior right of the father is
    recognized, this right will not be enforced where it will be
    detrimental to the welfare of the child. The only proper manner in
    which custody of a child under customary law can be determined is
    by specifically taking evidence to establish what is in the best
    interest and welfare of the child.”
  3. Under Islamic law, a wife only retains custody
    of a child when the child is a toddler, or less than the age of
    seven for a male child and nine for a female child, after which
    custody goes to the father.12 However, the welfare of
    children will be considered in awarding custody as was decided in
    the case of Bilyamin Bishir v. Suwaiba
    Mohammad13
    where the Sharia
    Court of Appeal held that the first thing to be considered in child
    custody matters is the child’s best interest, health, proper
    training, and the child’s education.

3. Factors Influencing the Grant of Child Custody

Having established that the primary consideration for the grant
of custody of a child is the welfare and interest of that child,
the next step of our inquiry is “what constitutes best
interest of children which must be put into consideration by a
court when making an order of custody”? There is no hard and
fast rule on what constitutes best interest of a child, as this
will depend largely on the circumstances of each case. Karibi-Whyte
JSC (as he then was) in the case of Williams v
Williams,14
observed as follows:

“The determination of the welfare of a child is a
composite of many factors. Consideration such as the emotional
attachment to a particular parent, mother or father; the inadequacy
of the facilities, such as educational, religious, or opportunities
for proper upbringing are matters which may affect determination of
who should have custody”.

It follows that where a party to a child custody proceeding can
prove that it is not in the best interests of the child that
custody of the child be granted to the other party, the courts will
take this factor into consideration in reaching its decision. It is
for this reason that it has been held in plethora of child custody
cases that the evidence provided determines the outcome of child
custody cases.

The “best interests of the child” is the universal
standard used in determining child custody disputes. This principle
of law is statutorily provided for in section 71 of the
Matrimonial Causes Act
and section 69 of the
Child’s Rights Act 2003
. In essence, a party seeking
custody may be able to obtain custody if he/she can prove that
he/she can provide sound education
(emphasis being on sound) and for the physical and
mental well-being of the child. He must also to an extent prove
that the other party will/may deny the child these three
factors.15

The Supreme Court per Obaseki JSC (as he then was) also held in
Williams v Williams,16 that:

“It seems to me that order for custody must have in
view the opportunity of sound education as well as physical and
mental welfare. A parent who will deny these to his or her child is
not worthy of an order for custody from the court.”

Furthermore, the Court of Appeal in Alabi v
Alabi
17 also considered factors determining who
should have custody and held as follows:

“Thus, certain relevant criteria must be considered in
the determination of the welfare of the child as in this case and
they include:

  1. The degree of familiarity of the child with each of the
    parents (parties);
  2. The amount of affection by the child for each of the parent
    and vice versa;
  3. The respective incomes of the parties;
  4. Education of the Child;
  5. The fact that one of the parties now lives with a third
    party as either man or woman and;
  6. The fact that in the case of children of tender ages
    custody should normally be awarded to the mother unless other
    considerations make it undesirable etc.”

It has also become a trite principle of law that the conduct of
a party claiming for custody is a major consideration. The Supreme
Court per Obaseki JSC (as he then was) further held in the case of
Williams v Williams,18

“The Welfare of an infant although the first and
paramount consideration is not the sole consideration and the
conduct of the parties is a matter to be taken into
account.”

The above-cited authorities will strengthen the claim of a party
if it can prove evidence of misconduct on the part of the opposing
party. In like manner the court in Kolawole v.
Kolawole
19 refused to grant custody to a mother
who had once tried to kill the child.

It is generally believed that girls should be in the care of
their mothers whilst boys their fathers. There is, however, no rule
of law which buttresses this belief hence courts are not bound to
adhere to this rule of thumb. It is believed that the best interest
principle will suffice in this respect.20 In
Dawodu v. Dawodu21, the Court refused
to grant custody to a mother who had no home of her own or private
means to bring up the child because it was not in the best interest
of the child to do so.

The important point remains that the outcome of child custody
disputes largely depends on the facts of each case as well as the
evidence placed before the Court. Similarly, the Courts have also
pronounced on the guiding principles and considerations for a child
born out of wedlock. In Muojekwu v
Ejikeme,22
the Court of Appeal provided a
guiding principle on the custody of a child borne out of wedlock.
It was held in the above case that:

“The Custody of any child born out of wedlock follows
that of the mother in the absence of any person claiming custody of
the child on the basis of being the natural father. Refer to Ben
Enwonwu v Spira (supra) at p. 223. This must be so since the child
must belong to a family and should not be rendered homeless for a
situation he did not create.”

Having established that the welfare of the child is the
paramount consideration, it is important to identify the different
types of custody which might be granted by the courts. These are
namely: Divided Custody; Split Custody; Joint Custody; Temporary
Custody and Third-Party Custody which are all explained below.

  1. Divided Custody – this occurs where the court
    directs that a child lives with each parent for different parts of
    the year with reciprocal visitation privileges. When this occurs,
    the child is expected to be in the custody of one of the parents,
    who will in turn exercise complete control over the child.
  2. Split Custody – this occurs when the court
    grants custody to one parent while care and control of the child is
    granted to the other, in which case the parent vested with custody
    has the power to control the major decisions of the child’s
    future while the other parent controls the day-to-day physical
    upbringing of the child.
  3. Joint Custody – this usually happens when the
    court directs both parents to share responsibility and authority
    with respect to the child. The effect of this is that both parents
    are involved in the physical sharing of custodial rights over the
    child as well as participating in decisions affecting the
    child’s life such as education, medical problems etc. This is
    slightly different from split custody.

    It should be noted that joint custody does not necessarily mean
    equal or fifty-fifty sharing of time since each case depends on the
    child’s age, parent’s availability & desires among
    other factors. Before an order of joint custody is made, the court
    must ensure that the parents would co-operate with each other,
    otherwise, such an order would be ineffectual.23

  4. Temporary Custody – this occurs where
    custody of a child is awarded to a parent temporarily pending the
    outcome of a separation or divorce proceedings. This power can be
    exercised where during a matrimonial proceeding, a dispute with
    respect to the custody, guardianship, welfare, maintenance,
    advancement, or education of the children of the marriage arises
    after the proceedings for the principal relief has been
    instituted.24The Petitioner or Respondent may make an application for an
    interim order of custody pending the final determination of the
    Petition. The application may be made ex-parte in cases of extreme
    urgency or on notice to the other party. In cases of extreme
    urgency, an oral application may be made subject to the leave of
    court before the ex-parte application or application on notice is
    made.
  5. Third-Party Custody – this usually
    happens where the court considers it desirable to do so. It may
    place the child under the custody of a third party- a person other
    than a party to the marriage, either permanently or as an interim
    measure if it considers this to be in the child’s interest
    pursuant to the provisions of section 71(3) of the
    Matrimonial Causes Act
    . This order will be made if it is
    either obvious that neither of the parties to the marriage is
    genuinely interested in the welfare and upbringing of the child or
    where neither of the parties to the marriage has applied for the
    custody or where in the opinion of the court, neither of the
    parties to the marriage is a fit and proper person to have the
    custody of the child.

However, it should be noted that it is usually in a situation
where there is nothing before the court to disqualify any of the
parties to the custody of the child that joint custody will be
granted. In Williams v Williams25, it was held by
Obaseki JSC:

“The position therefore is that there is no evidence
before the Court to disqualify either parent from being awarded the
custody of Kafialat Abimbola their daughter…. In the
circumstances, an order for joint custody with care and control to
the appellant and responsibility for education to the respondent
will be most appropriate. It will meet the justice of the case and
take care of the welfare of the child.”

4. Conclusion

In conclusion, the best interest of the child is the most
important factor to be considered in the award of custody of a
child which should ordinarily transcend material provisions of
food, shelter, clothing to encompass the sociological and
psychological well-being of the child.

Footnotes

1. Adesola Olanrewaju-Kadri, Senior Associate and Head of
the Real Estate & Succession Department, S.P.A Ajibade &
Co., Lagos, Nigeria.

2. Thomasset v Thomasset (1894) 63 LJP, 140.

3.. Cap. M7, Laws of the Federation of Nigeria (LFN)
2004.

4.. Bryan A. Garner, Thomson Reuters, 9th ed.
2009.

5. The Black’s Law Dictionary, 8th ed.
(2004).

6. (1992) 2 NWLR (Pt. 252) p. 210.

7. (2012) 8 NWLR (Pt. 1301) 1 p. 32 paras
F-G.

8. Cap. M7, Laws of the Federation of Nigeria (LFN)
2004.

9. Supra.

10. E.I. Nwogugu, Family Law in Nigeria,
(2nd ed, Heineman publishers 1974, reprinted 1985), p.
260.

11. (1989) 3 NWLR Pt. 109, p.
321.

12. See Action for Justice Nigeria; available at https://nigeria.action4justice.org/legal_areas/womens-rights-focusing-on-marriage-rights/child-custody-and-property-rights-in-marriage/
accessed on 28th June 2022.

13. Unreported Suit No: KTS/SCA/KT/39/2019.

14. (1987) 2 NWLR (Pt. 54) 66, p.74 para. G.

15. Eseroghene Joshua Oyitso (2012), ‘Child Custody
in Nigeria: Guiding Principles and Considerations’ p. 6.
Available at:
(DOC) Child Custody in Nigeria: Guiding Principles and
Considerations | Joshua Oyitso – Academia.edu, accessed 31st
July 2022.

16. Supra.

17. (2007) 9 NWLR (Pt. 1039) 297, pp. 347-348, paras
G-A.

18. Supra, p.75, para G.

19. Unreported Suit No. HCL/45D/81/of 1/7/82.

20. E.I. Nwogugu, Family Law in Nigeria, supra,
n. 10 at p. 268.

21. (1976) 7-9 CCHCJ 201.

22. (2000) 5 NWLR (Pt. 657) 402 at p. 426 paras
A-B.

23. See Resolution Law Firm, https://www.resolutionlawng.com/child-custody-after-divorce-in-nigeria/
last

assessed on 25th June 2022.

24. Ibid.

25. Supra, p. 77, paras F-H.

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guide to the subject matter. Specialist advice should be sought
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