Authored By: Kalu Grace Onyinyechi
Caleb University
Child custody has consistently been a significant issue in matrimonial disputes, particularly where parents are separated or involved in divorce proceedings. The question of who should have custody of a child can become contentious, especially where the relationship between the parents has broken down. In Nigeria, the court has the power to make orders concerning the custody, care, upbringing and education of children. Although custody may ordinarily be awarded to either parent, the court may, depending on the circumstances of a particular case, make an order in favor of another suitable person where it considers such an arrangement to be in the best interests of the child. The parents may, before or during matrimonial proceedings, reach an agreement concerning the custody and care of their children. Such an agreement may provide for sole or joint custody. However, the agreement of the parents does not remove the court’s duty to consider the welfare and best interests of the child. Where the parties cannot agree, the court will consider the facts and circumstances placed before it and make such order as it considers appropriate. The legal framework governing child custody in Nigeria includes the Matrimonial Causes Act[1], the Child Rights Act 2003 and applicable State Child Rights Laws, as well as principles of customary law and, where applicable, Islamic law. The courts have, over time, developed important principles through judicial decisions on the subject.
Meaning of Child Custody
Child custody generally refers to the care, control and upbringing of a child and the responsibility for making decisions concerning the child’s welfare. It may be awarded to one parent, jointly to both parents, or, in appropriate circumstances, to another person. In Otti v. Otti,[2] custody was described as essentially involving the control, preservation and care of the child, physically and mentally, including responsibility for the child’s needs such as food, clothing, education and other necessities of life. For the purposes of matrimonial proceedings, the expression “children of the marriage” has a broad meaning[3]. It may include:
- A child adopted since the marriage by both husband and wife or by either of them with the consent of the other;
- A child of the husband and wife born before the marriage, whether or not legitimized by the marriage; and
- A child of either the husband or wife, including an adopted child or a child born outside the marriage, where the child was ordinarily a member of the household of the husband or wife at the relevant time.
The Welfare of the Child as the Paramount Consideration. The fundamental principle governing the determination of custody is that the welfare and best interests of the child must be given paramount consideration. Section 71 of the Matrimonial Causes Act provides that in proceedings concerning the custody, guardianship, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration and, subject to that consideration, may make such order as it considers proper. This provision places the welfare of the child at the center of the court’s decision. The court is therefore not primarily concerned with punishing one parent or rewarding the other because of the failure of the marriage. Rather, its principal concern is to determine the arrangement that will best serve the child’s welfare. In Odusote v Odusote,[4] the court emphasized that the welfare of the children is of primary importance in determining custody. The welfare of a child may include considerations relating to the child’s education, security, general wellbeing and development. Similarly, in Williams v Williams,[5] the court recognized that the welfare of a child involves a consideration of several factors, including the child’s emotional attachment to either parent or the availability of facilities and opportunities for the child’s proper upbringing, education and development. In Odogwu v Odogwu,[6] the Supreme Court explained that the welfare of a child should not be measured merely by material possessions or the provision of expensive accommodation, clothing, food, television and other material comforts. The psychological wellbeing, happiness, development and general welfare of the child are also important considerations. It follows that the parent with the greater financial resources does not automatically have a superior claim to custody. The court will consider the totality of the circumstances and determine what arrangement will best promote the child’s welfare.
Factors Considered by the Court in Awarding Custody
In determining custody, the court considers the particular circumstances of each case. Some relevant factors include the age of the child, emotional attachment to either parent, educational arrangements, living conditions, security, health, moral and psychological wellbeing, the ability of each parent to care for the child, and the relationship between the child and each parent. The court may also consider the conduct of the parents where such conduct has a bearing on the welfare of the child. Where a parent has abandoned a child for a considerable period, this may be relevant to the determination of custody because the court may consider the existing relationship between the child and that parent. For example, in Ihonde v Ihonde (unreported),[7] the court considered a situation in which a mother had left her husband and young child when the child was only about ten months old. The mother subsequently returned after several years and sought custody. The court considered the fact that the child had developed a strong attachment to the father and hardly recognized the mother. The circumstances were relevant to the court’s determination of what would be in the child’s best interests. The decision demonstrates that abandonment or prolonged absence may be relevant in custody proceedings. However, it should not be understood as establishing an automatic rule that a parent who has previously abandoned a child can never obtain custody. The ultimate question remains whether custody would be in the best interests of the child in the circumstances of the particular case. The court may also consider whether a parent is capable of providing a safe and suitable environment for the child. In Dawodu v Dawodu,[8] the circumstances surrounding the mother’s ability to provide a suitable home and care for the child were considered by the court. Likewise, in Damulak v Damulak,[9] the court considered whether the arrangements made by the father for the care and upbringing of his young son were adequate. These cases demonstrate that the court is concerned not merely with the desire of a parent to have custody, but with whether the proposed arrangement will promote the welfare and proper development of the child.
Gender of the Child and Custody
There has traditionally been a belief in some Nigerian communities that a male child should ordinarily remain with the father while a female child should remain with the mother. However, such assumptions should not be treated as an overriding principle in determining custody. The court is required to consider the welfare and best interests of the particular child rather than simply applying a gender-based rule. In Oyelowo v Oyelowo,[10] the issue of custody of two male children arose after the parents had separated. Although the trial court took the view that the boys should be in their father’s home, the appellate court took a different approach and emphasized the need to consider the statutory principle concerning the welfare of the children. The important point is that the sex of the child should not, by itself, determine custody. The circumstances of the child and the ability of each parent to provide proper care and upbringing remain important. The nationality or ethnic origin of a parent should not, by itself, determine who is entitled to custody. The overriding consideration remains the welfare and best interests of the child. In Oloyede v Oloyede,[11] the court considered the fact that the mother of the child was not of Nigerian descent. The court did not regard her foreign nationality as sufficient justification for awarding custody to a father whom the court found unsuitable. This demonstrates that custody should be determined principally by the circumstances affecting the welfare of the child rather than by nationality alone.
Although the welfare of the child is the paramount consideration, the conduct of the parents may also be relevant where it has a direct bearing on the child’s welfare. A parent should not ordinarily be deprived of custody merely because that parent was responsible for, or contributed to, the breakdown of the marriage. The custody jurisdiction is not intended to punish one spouse or reward the other. In Brewer v Brewer[12], the Supreme Court recognized that the adultery of a parent does not automatically disqualify that parent from having custody. The relevant question is whether the circumstances surrounding the conduct make it undesirable for the parent to have custody or otherwise affect the welfare of the child. However, where the conduct of a parent demonstrates that the child may be exposed to danger, neglect or other serious harm, such conduct may become a significant factor in determining custody. For instance, in Kolawole v Kolawole,[13] the court refused to award custody to a mother in circumstances involving an attempt by her to harm the child. The case illustrates that parental conduct may become highly relevant where it affects the safety and wellbeing of the child. Therefore, while misconduct in the marriage is not necessarily sufficient to deprive a parent of custody, conduct that has a direct and adverse effect on the child may influence the court’s decision.
Joint and Sole Custody
There are different forms of custody that may be recognized by the court, including sole custody and joint custody. Sole custody occurs where one parent is given primary physical custody and responsibility for the day-to-day care of the child. The other parent may nevertheless be granted access or visitation rights, depending on the circumstances. Joint custody, on the other hand, involves both parents having continuing responsibility for the care and upbringing of the child. Depending on the circumstances, the arrangement may involve shared physical care or joint decision-making concerning important matters affecting the child. The courts may make an order for joint custody where they consider it beneficial to the child and where the circumstances permit effective cooperation between the parents. In Williams v Williams (supra), the issue of custody arose concerning children who had been living separately with their respective parents following the parties’ separation. The Supreme Court ultimately considered joint custody to be appropriate in the circumstances. Joint custody, however, may not always be suitable. Where there is serious conflict, violence, instability or an inability of the parents to cooperate in matters affecting the child, the court may consider another arrangement to be more appropriate.
Custody of Children Born Outside Marriage
The question of custody of a child born outside marriage has historically been influenced by common-law and customary-law principles. Under the common law, the mother of a child born outside marriage traditionally had the primary right to custody, while the natural father seeking custody would generally have to demonstrate circumstances showing that the mother was unsuitable or that it would be in the child’s best interests for custody to be given to him. Under certain customary-law systems, different principles may apply concerning the custody of children born outside marriage. In some instances, the maternal family may have a recognized interest in the child. However, customary law is subject to the broader requirement that the welfare and best interests of the child should be protected. A customary rule should not be applied in a manner that is inconsistent with applicable legislation or the welfare of the child. Consequently, the determination of custody of a child born outside marriage requires consideration of the applicable law and the particular circumstances of the child.
Conclusion
Child custody is one of the most sensitive issues that may arise when a marriage breaks down. The conflict between parents should not be allowed to overshadow the needs and welfare of the child. The Nigerian legal framework places the welfare and best interests of the child at the center of custody proceedings. Although the court may consider factors such as the age of the child, emotional attachment, education, living arrangements, financial circumstances, parental conduct and the ability of each parent to provide proper care, no single factor should automatically determine custody in every case. The courts are therefore expected to examine the circumstances of each case carefully and make an order that promotes the child’s physical, emotional, psychological, educational and general wellbeing. The principle that the welfare of the child should be paramount is both practical and commendable. It ensures that custody proceedings remain focused not on the victory of one parent over another, but on securing an environment in which the child can grow, develop and enjoy the care and protection necessary for a healthy and productive life.
Reference(S):
[1] Matrimonial Causes Act, 1970
[2] Otti v Otti (1992) 7NWLR (pt. 252) 187 at 210
[3] Matrimonial Causes Act 1970(modified in 2004), s 69.
[4] (2012) 3NWLR (pt. 1288) pg. 478 at 487
[5] (1987) 2NWLR (pt. 54) pg. 66 at 74.
[6] (1992) 2NWLR (pt. 225) 539.
[7] Suit number WD/85/70
[8] (1976) CCHCJ, 207.
[9] (2004) 8NWLR (pt. 874) 151.
[10] (1987) 2NWLR (pt. 56) pg. 239.
[11] (1975) 1NMLR 181.
[12] (1953) 8CLR2.
[13] Suit No. HCL/450/81 of 1/7/82.
