CHILD CUSTODY IN NIGERIA: A FALLOUT OF IRRETRIEVABLE BREAKDOWN OF MARRIAGES1
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.
- 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.
- 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."
- 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 Alabi17 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:
- The degree of familiarity of the child with each of the parents (parties);
- The amount of affection by the child for each of the parent and vice versa;
- The respective incomes of the parties;
- Education of the Child;
- The fact that one of the parties now lives with a third party as either man or woman and;
- 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. Kolawole19 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,22the 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.
- 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.
- 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.
- 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
- 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
The 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.
- 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."
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.
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.
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.
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.
25. Supra, p. 77, paras F-H.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.