CHILD CUSTODY IN NIGERIA.
With a hike in the rate of divorce and separation of parents from one parent or both, it is important to understand the legal view when the issue of child custody is in question. Does a particular parent or gender have automatic right the custody of a child? Will a mother of a child be automatically granted custody because she is the one who gave birth to the child? Let us take a look inductively at these questions.
WHAT IS CHILD CUSTODY?
The custody of a child has been defined in NWOSU V NWOSU (2012) 8 NWLR (Pt.1301) 1 pg 32 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.”
The Black’s Law Dictionary,9th Edition defines custody as :
“…the authority to make significant decisions on a child’s behalf including decisions about education, religious training and health care”.
These definitions clearly state that custody of a child is beyond physically having control of a child but extends to authority to make decisions for the wellbeing of the child in all aspects.
A child is not a chattel to be owned but a person who is legally recognized from birth having rights and can make claims. Though a child may not be mature enough to take some responsibilities, they are not chattels which can be pushed about. The interest of a child is a paramount consideration in the issue of child custody.
WHAT IS THE DIFFERENCE BETWEEN CHILD CUSTODY AND GUARDIANSHIP?
Basically the difference is the child parentage. Under guardianship, the care, maintenance and control of a child is given to a third party other than the parents of a child in a situation where parents are dead, incarcerated, sick, incapacitated etc. A guardian acts on behalf of a parent.
In custody, the care, control and maintenance of the child are by the parents. Custody will only be granted to a third party in exceptional circumstances.
WHAT LAWS GOVERN CHILD CUSTODY?
- Child’s Rights Act (2003)
- Child’s Rights Law of various states.
- Matrimonial Causes Act (1970)
- Customary Court Laws
- Islamic Court Laws.
- Section 17(3) (f) 1999 Constitution of the Federal Republic of Nigeria as amended.
CHILD CUSTODY UNDER CUSTOMARY LAW.
Nigeria is a country with multi ethnic groups and under some customs, the custody of a child is solely the Father and this is because of the patrilineal nature of most communities. This was further affirmed by E.I Nwogu in his book on Family Law in Nigeria 1979 where he stated “Under most Customary law systems in Nigeria, the belief is that
the father has absolute right to the custody of his legitimate or
legitimated child. Upon his death the male head of the father’s family is
vested with the right although the day to day care of the children may
be the responsibility of the mother. However, customary law also
recognizes that the father’s absolute right will not be enforced where it
is not solely in favour of the interest and welfare of the Child. For
instance, where the child is of tender age, customary law requires that it
should be left under the care of the mother. In such a case the father’s
right is merely in abeyance, and may be exercised when the child could
safely be separated from the mother”.
This is the position under most customary communities but this position has waned down completely because of the Court’s decision in FEBISOLA
OKWUEZE Vs PAUL OKWUEZE(1989) 3 NWLR Part
109 Page 329 Uwais JSC which stated although the superiority of a father is recognized under customary law; such will not be exercised where it will be detrimental to the best interest and welfare of the child. This was further affirmed in the case of WILLIAMS V WILLIAMS (1981) 1 Q.L.R.N. which states that the law allows same rights and authority given to the father to the mother as well. The right and authority of father and mother shall be equal, exercised by either without the other.
Aside the best interest of the child, other considerations such as the conduct of both parties are also looked into by the court before granting custody. In OBAJIMI V OBAJIMI at page 117
“ ..the welfare of the minor, although the first and paramount consideration, is not the
Sole consideration, the conduct of the parties is a matter to be taken into consideration”
Please note that for a marriage to be said to be regulated under customary law, the necessary customary rites must have been done including the payment of bride price. The Customary Court cannot assume jurisdiction where this is in question.
CHILD CUSTODY UNDER STATUTORY LAW.
Under statutory law, the Matrimonial Causes Act governs the custody of a child. No party has automatic right over the custody of a child; certain considerations must be looked into before custody is granted. S 7(1) Matrimonial Causes Act states that “in the proceedings with respect to custody, guardianship, welfare, advancement, or education of children of the marriage, the court shall regard the interest of those children as the paramount consideration…and the court may make such order in respect to those matters as it thinks proper“. This means other principles guide the custody of a child under statutory law and no parent has automatic right.
WHAT IS THE INTEREST OF A CHILD IN CUSTODY?
Worthy of note is that the interest of a child composes of various factors and depends on each case or circumstances. In WILLIAMS V WILLIAMS (SUPRA), states inter alia that the determination of the welfare of a child is a composite of several factors and includes the emotional attachment of a child to a parent, availability of facilities for educational, religious or opportunities for proper upbringing are matters which must be considered by the court. ODUSOTE V ODUSOTE (2012) 3 NWLR Part 1288 page 478 at
487 ratio 15 the court stated that interest of the child would include the welfare, education, security and overall wellbeing and development. The best interest of a child is therefore dependent on the circumstances of each case and is a composite of several factors which narrows down to the wellbeing of the child.
TYPES OF CUSTODY
- Divided Custody
This is where the child lives with each parents separately on agreed basis as to time. Where the child is under the authority of a particular parent, such parent has exclusive tight and control over the child.
- Split Custody
This is where the physical control of a child is given to a parent; care and control to another parent. One parent controls major decisions that affect the child while the other sees to the day to day care physical upbringing of the child.
- Joint Custody
This is where both custody and the physical upbringing of a child is shared between parents. Both parents have equal right of control, care and physical access to the child unlike split custody where one parent has physical custody; another has control over major decisions. There must be evidence that both parties will cooperate before making such order.
- Temporary Custody
This is where custody is granted temporarily to a parent pending the outcome of the matrimonial proceedings. This arises where parties are disputing over the control of a child.
- Third Party Custody
The Court may grant custody in it’s discretion to a third party where it considers both parents not fit and proper or where both parents are not interested in the custody of the child. FEBISOLA OKWUEZE V PAUL OKWUEZE (1989) 3 NWLR Part
109 page 329
CUSTODY OF CHILDREN BORN OUT OF WEDLOCK.
Where a child is born out of wedlock, under customary law, the father of the girl takes custody of the child or in the absence of the girl’s father, the mother takes custody. However under statutory law, S 69 MCA makes reference to children of the marriage and they include:
- Child adopted since the marriage by both husband and wife or either with due consent
- Child born before the marriage by husband and wife whether legitimated by the marriage or not
- Child born by either the husband or wife before the marriage (including illegitimate or adopted child by either husband or wife) if at relevant time, the child was a member of the household of the husband or wife.
This means that children born out of wedlock under statutory law, will not have the customary law position based on section 69 MCA. The interest of the child will be the Court’s consideration in custody of the child.
Please note that a child born by the husband and wife before marriage (legitimated by the marriage or not) which has been adopted by other person(s) cannot fit in as children of the marriage.
IN CONCLUSION:
In dissolution of marriage where there are children of the marriage, the court ensures that proper care and provision is provided for the child as this is the most important aspect in a case of dissolution of marriage. The law seeks to protect the interest of the child first when looking at child custody. A court should not judge which party will have custody first before considering the interest of the child as this will amount to putting the cart before the horse.
Success Oghosa Osasogie is a Lagos based Legal Practitioner and a professional volunteer.
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