CHILD CUSTODY AND THE BEST INTEREST OF THE CHILD IN THE NIGERIAN LEGAL SYSTEM.

Abstract.

Child custody is one of the most critical, sensitive, and delicate subject matters under family law in the Nigerian legal system.To ensure the preservation of proper upbringing, emotional stability, and a secure future for children, the law seeks to entrust them to a responsible parent or guardian. Nigeria enacted the Child Rights Act (CRA) in 2003 as a major step towards fulfilling its international obligations under the United Nations Convention on the Rights of the Child (1989). The Matrimonial Causes Act places significant emphasis on issues of child custody and guardianship following divorce or separation, one of the major challenges affecting child custody and maintenance under Nigerian law is the inconsistent application of relevant legal frameworks.

To ensure the effective protection of children’s welfare in custody and maintenance matters in Nigeria, deliberate legal and institutional reforms must be pursued.

Keywords : child , custody, family law, Nigerian legal system , divorce, Child Rights Act and matrimonial causes act.

Introduction.

Child custody is one of the most critical, sensitive, and delicate subject matters under family law in the Nigerian legal system. It becomes particularly relevant during divorce or separation proceedings, where millions of children are exposed to mental, physical, and emotional distress arising from parental conflict. It has been widely observed that children are often the primary victims of unresolved disputes between parents.

To ensure the preservation of proper upbringing, emotional stability, and a secure future for children, the law seeks to entrust them to a responsible parent or guardian. This necessity gave rise to the development of child custody principles in the Nigerian legal system, with emphasis placed on the best interest of the child.

The best interest of the child is a judicial doctrine applied by courts in custody proceedings where parents contest custody. The doctrine is child-centred rather than parent-centred, focusing on what will best promote the child’s overall welfare rather than the rights or convenience of the parents.

In Nigerian custody proceedings, the best interest of the child entails prioritising the child’s physical, emotional, psychological, moral, and educational welfare above parental rights. Courts consider factors such as stability, affection, income, living arrangements, education, and, where appropriate, the views of the child depending on their age and maturity.

Who Is a Child?

There is no universally accepted legal definition of the term child, as its meaning often depends on the context in which it is used (Re Carton, 1945)

In ordinary usage, Merriam-Webster Dictionary defines a child as a young person especially between infancy and puberty

International instruments to which Nigeria is a signatory provide clearer definitions. Article 2 of the African Charter on the Rights and Welfare of the Child (1991) defines a child as every human being below the age of eighteen years. Similarly, Article 1 of the United Nations Convention on the Rights of the Child (1989) defines a child as every human being below eighteen years, unless majority is attained earlier under applicable law.

For the purpose of this discussion, reliance is placed on Section 29(4) of the Constitution of the Federal Republic of Nigeria, which defines a child as a person under the age of eighteen years.

Meaning of Custody.

Custody refers to the care, control, and maintenance of a child, as awarded by a court to a responsible parent or guardian, according to Black’s Law Dictionary. Custody involves both physical possession of the child and the authority to make decisions concerning the child’s welfare.

Before awarding custody, courts conduct a careful evaluation of relevant circumstances, looking beyond emotions to determine what is necessary for the proper development and welfare of the child.

Types of Custody

Physical Custody

This determines where the child will reside and who will be responsible for day-to-day care.

Legal Custody

This involves decision-making authority over the child’s education, healthcare, religion, and general upbringing.

Sole Custody

One parent is granted both physical and legal custody of the child.

Joint Custody

Both parents share decision-making responsibilities, although the child may reside primarily with one parent.

Split Custody

This is rarely granted and applies where there is more than one child, with each parent having custody of one or more children.

The Principle of the Best Interest of the Child.

The principle of the best interest of the child is fundamental and supreme in custody matters. It forms the bedrock of child rights protection in Nigeria and serves as the primary consideration in all matters relating to children and young persons.

Although the application of the best interest standard varies across jurisdictions, certain common elements are consistently considered. Unfortunately, the child’s views are often overshadowed by parental conflict during custody disputes. Nevertheless, Nigerian courts have consistently reaffirmed that the welfare of the child must remain paramount.

In Williams v. Williams , the court took Nigerian cultural considerations into account in awarding custody to the mother. The court explained that the concept of welfare is a composite of several factors, including emotional attachment, educational opportunities, religious upbringing, and overall stability. The court further emphasised that custody decisions should not be governed by rigid formulae but by a holistic evaluation of all relevant circumstances

The welfare of the child is synonymous with the best interest of the child must therefore be accorded paramount consideration in all custody proceedings. The views of the child, where appropriate, also form part of the factors that constitute the child’s best interest.

Factors for Determining the Best Interest of the Child in Nigeria.

In Alabi v. Alabi (2007) LPELR-CA/IL/2006, the Court of Appeal outlined factors to be considered in determining the welfare of a child. These include:

The degree of familiarity of the child with each parent.

The level of affection the child has for each parent.

The respective incomes and financial capacities of the parties.

The educational needs of the child.

Whether either parent is cohabiting with a third party.

The principle that custody of children of tender age should ordinarily be awarded to the mother, unless exceptional circumstances make this undesirable.
Similarly, in Theresa Temitayo Williams v. V. Rasheed Ahmed Williams (1987) 2 NWLR (Pt. 54) 66, Karibi-Whyte, JSC stated:

“It is now well settled that in proceedings with respect to the custody of children, the court shall regard the interests of the children as of paramount consideration. The determination of the welfare of a child is a composite of many factors… What the court deals with is the lives of human beings and ought not to be regulated by rigid formulae. All relevant factors ought to be considered, the paramount consideration being the welfare of the child.”

The learned Justice further clarified that “paramount” does not mean exclusive, as held in Re L (Infants) (1962) 3 All ER 1, thereby allowing courts to consider other relevant factors while maintaining the child’s welfare as the superior consideration.

The Child Rights Act (CRA) 2003.

Nigeria enacted the Child Rights Act (CRA) in 2003 as a major step towards fulfilling its international obligations under the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1991). Although these international instruments were adopted in the early 1990s, it was only after several years of intense debate, advocacy, and legislative deliberations that the Child Rights Bill was passed by the National Assembly in July 2003.

The Act was subsequently assented to by the then President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo, in September 2003, and came into force as the Child Rights Act 2003. The enactment of the Act marked a significant milestone in the protection and promotion of children’s rights in Nigeria, as it domesticated key international child protection standards into Nigerian law.

Under Section 12 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), no international treaty shall have the force of law in Nigeria unless it has been enacted into law by the National Assembly.

While the Child Rights Act satisfies this constitutional requirement at the federal level, Nigeria operates a federal system of government. Consequently, for the provisions of the Child Rights Act to be fully applicable within a state, such a state must domesticate the Act by passing it into law through its House of Assembly.

As a result, although the Child Rights Act applies directly within the Federal Capital Territory, its enforcement across Nigeria depends on adoption by individual states. This has led to variations in the level of protection afforded to children across the federation, particularly in matters relating to child custody, welfare, and the best interest of the child.

The cornerstone of child custody legislation in Nigeria is the Child Rights Act (CRA) 2003, which firmly entrenches the best interest of the child as the guiding principle in all matters concerning children. Section 1 of the Act provides that “in every action concerning a child, whether undertaken by an individual, public or private body, institution or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration.” This provision establishes the welfare of the child as paramount, overriding competing parental or institutional interests.

Furthermore, section 277 of the Act defines a child as a person under the age of eighteen years, thereby clarifying the scope of its protection. Sections 1 and 2 of the Act further reinforce this position by mandating that the best interest of the child shall be of paramount consideration in all actions, while also guaranteeing the child such protection and care as is necessary for his or her well-being.

Collectively, these provisions underscore the legislative intent to prioritise the holistic welfare of the child in custody-related decisions.

Beyond custody determination, the Child Rights Act also provides a comprehensive framework for the prevention and punishment of all forms of violence, abuse, and exploitation of children. This broad protective approach strengthens the application of the best interest principle by ensuring that custody decisions are made within a legal environment that actively safeguards the physical, emotional, and psychological well-being of the child.

The Matrimonial Causes Act 1970 (MCA).

This is the principal legislation governing matrimonial causes in Nigeria. The Act makes comprehensive provisions relating to the dissolution of marriage, judicial separation, restitution of conjugal rights, matrimonial reconciliation, as well as matters incidental to matrimonial proceedings such as custody, maintenance, and settlement of children. Within this framework, the Act recognises that disputes arising from marital breakdown often necessitate judicial intervention in determining the custody and welfare of children.

The Matrimonial Causes Act places significant emphasis on issues of child custody and guardianship following divorce or separation. Although the Act is primarily concerned with regulating marital relationships, its custody provisions are guided by the overriding consideration of the welfare and best interests of the child. In this regard, the Act provides a legal framework within which courts establish custody arrangements while outlining the rights and obligations of parents towards their children. Factors such as the child’s age, health, education, emotional needs, and overall well-being are central to judicial determination.

Section 71 of the Matrimonial Causes Act empowers Nigerian courts to make orders relating to the custody, maintenance, and settlement of children of the marriage. The section expressly mandates that, in exercising this discretion, the welfare and best interest of the child shall be the paramount consideration. This provision aligns the Act with modern child-centred principles of family law and complements the protective objectives of the Child Rights Act.

The discretionary nature of custody and maintenance orders under the Matrimonial Causes Act was judicially affirmed in Okobi v Okobi (2020) 1 NWLR (Pt 1705) 301, where the Court of Appeal held that orders relating to custody and maintenance of children are interlocutory in nature. The court reasoned that such orders, though seemingly final, remain subject to revision, suspension, or modification in response to changing circumstances affecting the welfare of the child.

In actions relating to the custody of children, Nigerian courts are guided by the paramount consideration of the welfare and best interest of the child. This principle is firmly rooted in section 71 of the Matrimonial Causes Act and section 1 of the Child Rights Act, which require the court to place the child’s interest above all other considerations. The Court of Appeal has consistently affirmed this position. In Obahaya v. Obahaya (2022) LPELR-57141 (CA), Onyemenam JCA held that in proceedings concerning the custody, guardianship, welfare, advancement, or education of children of a marriage, the court must regard the interests of the children as the paramount consideration. Similarly, in Okide v. Okide (2020) LPELR-49989 (CA) and Yange v. Musa (2018) LPELR-45269 (CA), the Court of Appeal reiterated that parental rights or preferences are subordinate to the welfare of the child. Thus, the interest and welfare of the child remain the guiding and overriding principle in custody proceedings under Nigerian law.

Judicial interpretation has further clarified the concept of child custody under Nigerian law. In Otti v Otti, the court defined custody as encompassing not merely physical control of the child, but also the preservation and care of the child’s person in a physical, mental, and moral sense. The court explained that custody involves responsibility for meeting the child’s essential needs, including food, clothing, education, instruction, and general welfare. This definition underscores the comprehensive nature of custody, extending beyond mere physical possession to include the overall upbringing and development of the child

CHALLENGES IN CHILD CUSTODY IN NIGERIA .

One of the major challenges affecting child custody and maintenance under Nigerian law is the inconsistent application of relevant legal frameworks. Nigeria’s plural legal system, which accommodates statutory, customary, and Islamic law, has contributed to variations in judicial outcomes in custody disputes. This challenge is further exacerbated by the non-domestication of the Child Rights Act 2003 in some states, resulting in uneven protection of children’s rights across the federation. Consequently, children in states that have not adopted the Act may not enjoy the same level of legal protection as those in states where it has been domesticated. This lack of uniformity undermines the effective implementation of the best interest of the child principle and highlights the need for a harmonised legal framework applicable across all states.

In addition, cultural and religious considerations continue to exert significant influence on custody and maintenance decisions in Nigeria. Deep-rooted beliefs and traditional practices often shape parental expectations and community attitudes towards child custody, sometimes at the expense of statutory provisions and judicial principles. In certain instances, these considerations may conflict with the welfare-based approach mandated by law, thereby compromising the child’s best interests. Addressing this challenge requires sustained public enlightenment and awareness campaigns aimed at promoting understanding of the best interest principle and reinforcing the primacy of child welfare over cultural or religious preferences.

Another persistent challenge relates to the enforcement of child support and maintenance orders. Despite clear judicial pronouncements, many custodial parents face difficulties in securing financial support from non-custodial parents. Weak enforcement mechanisms, limited monitoring structures, and delays in compliance often render maintenance orders ineffective in practice. Strengthening enforcement procedures, including the establishment of more robust monitoring systems and sanctions for non-compliance, would enhance adherence to court orders and ensure that children’s material needs are adequately met.

Recommendations to the challenges.

To ensure the effective protection of children’s welfare in custody and maintenance matters in Nigeria, deliberate legal and institutional reforms must be pursued.

Firstly, the Child Rights Act 2003 should be fully domesticated and uniformly implemented across all states of the federation. The continued existence of divergent legal regimes undermines consistency in custody determinations and weakens the enforcement of the best interest of the child principle. A harmonised legal framework is essential to guarantee equal protection for all children, irrespective of location.

Secondly, courts should adopt a strictly child-centred approach in custody disputes, ensuring that the welfare and best interest of the child consistently prevail over parental claims, cultural practices, or religious considerations. Continuous judicial training and sensitisation on child rights standards would further strengthen the quality and consistency of judicial decision-making.

Thirdly, enforcement mechanisms for child maintenance and support orders must be strengthened. Courts should make greater use of available sanctions against defaulting parents, while relevant institutions should develop structured systems for monitoring compliance with maintenance orders. Effective enforcement is critical to safeguarding the material welfare of children.

Additionally, public legal education and awareness programmes should be intensified to promote understanding of child custody laws and the best interest principle. Enlightening parents and communities on children’s rights will encourage voluntary compliance and reduce resistance to statutory provisions.

Finally, the use of alternative dispute resolution mechanisms, particularly mediation and family counselling, should be encouraged in appropriate cases. These mechanisms can minimise parental conflict and promote cooperative parenting, thereby advancing the emotional and psychological well-being of the child.

Conclusion.

In conclusion, the best interest of the child remains the paramount consideration in the determination of child custody under Nigerian law. Both the Child Rights Act 2003 and the Matrimonial Causes Act emphasise the centrality of child welfare in custody and maintenance decisions, a position consistently upheld by Nigerian courts.

As children represent the future of the nation, their upbringing plays a critical role in national development. Where neither parent is capable of adequately discharging parental responsibilities, the law permits the appointment of a suitable guardian in the best interest of the child. However, challenges such as inconsistent application of laws, cultural influences, and weak enforcement mechanisms persist. It is therefore essential that separating parents prioritise the welfare of their children above personal disputes, as protecting the best interest of the child is both a legal and societal responsibility.