Child custody is one of the most critical issues arising in divorce proceedings, as it significantly affects the parties involved. The court may grant custody to either parent or, in certain circumstances, to a third party who is not a party to the marriage.
Before the commencement of divorce proceedings, the parties are at liberty to mutually agree on the arrangements for the custody and maintenance of the children. Where such agreement exists, the court will ordinarily adopt it upon commencement of the proceedings. However, in the absence of an agreement, the court will determine custody based on arguments presented by both parties. The court will also issue orders relating to the maintenance, welfare, education, and general upbringing of the children. In making these decisions, the court’s overriding consideration is the best interest of the child.
MEANING OF CHILD CUSTODY
In the case of Otti v. Otti, child custody was defined as encompassing the care, control, and protection of a child in all aspects—physically, mentally, and morally—including responsibility for the child’s needs such as food, clothing, and education.
According to Black’s Law Dictionary, custody of children means “the care, control, and maintenance of a child, which may be awarded by a court to one of the parents in divorce or separation proceedings.”
Custody can be categorized into:
- Legal Custody: The authority to make major decisions concerning the child’s upbringing, education, healthcare, and general welfare.
- Physical Custody: The right to provide day-to-day physical care and supervision of the child.
Custody orders typically encompass both legal and physical custody unless otherwise specified.
LEGAL FRAMEWORK FOR GRANTING CHILD CUSTODY
Under Nigerian law, both parents have equal rights to custody. The court considers submissions from both parties and evaluates various factors to determine what arrangement best serves the child’s interest.
Factors Determining Custody
The primary and most significant consideration is the best interest of the child. The Matrimonial Causes Act mandates that in proceedings concerning custody, guardianship, welfare, or education of children, the child’s interest must be the paramount consideration.
In Odusote v. Odusote, where the wife sought dissolution of marriage and custody of children aged between 11 and 13, the court emphasized that the children’s interest is paramount in determining custody.
The court interprets “interest of the child” to include welfare, emotional and physical well-being, education, security, and overall development. In Nanna v. Nanna, the court affirmed that moral, mental, and physical care must be central to any custody decision.
Custody is not a reward or punishment—a party’s good or bad conduct is not determinative. A party found at fault in the marriage may still be granted custody if the court believes they are better placed to care for the child. For instance, if the other party lacks financial stability or caregiving capacity.
In Alabi v. Alabi, the court considered several factors in determining custody, including:
- The child’s emotional bond with each parent.
- The level of affection between the child and each parent.
- Financial capability of each parent.
- Living arrangements and whether one parent is cohabiting with a third party.
- The child’s age and gender—with younger children, particularly females, often presumed better off with their mother, unless circumstances dictate otherwise.
The court may also consider parental misconduct. While not the primary determinant, if both parties present equally suitable caregiving plans, evidence of repeated misconduct or moral depravity may shift the court’s decision.
Another important consideration is the sex and tender age of the child. Courts typically presume that very young children are better cared for by their mothers, except where there are serious concerns such as immorality, infectious diseases, insanity, or cruelty.
Custody in Customary and Islamic Marriages
In cases involving customary or Islamic marriages, the courts have emphasized that the best interest of the child remains the paramount consideration.
For instance, in Okwueze v. Okwueze, while customary law grants the father custody of legitimate children, courts will override this where it would harm the child’s welfare.
Similarly, in Bilyamin Bishir v. Suwaiba Mohammad, the Sharia Court of Appeal held that in custody matters, priority must be given to the child’s interest, including health, proper training, and education.
Custody Granted to Third Parties
Section 71(3) of the Matrimonial Causes Act empowers the court to grant custody to a third party (not a parent), where it would be in the child’s best interest. In Okobi v. Okobi, the court exercised this discretion in favour of a third party, reinforcing that the child’s welfare supersedes all other considerations.
Jurisdiction of Courts
The High Court has jurisdiction over matrimonial causes under the Matrimonial Causes Act, including divorce, judicial separation, and custody issues.
However, Magistrates’ Courts, through their Family Court divisions, also have jurisdiction to hear and determine custody matters—but only when they are not part of divorce or other matrimonial proceedings, as they lack jurisdiction over matters covered by the Matrimonial Causes Act.
The protection and welfare of children is of paramount concern to the State, as reflected in the Child Rights Act 2003 and other relevant statutes. Accordingly, when determining custody matters—whether in statutory, customary, or Islamic marriages—the courts are guided by the principle of the child’s best interest. This principle governs all decisions on whether custody should be awarded to a parent or a third party, ensuring the child’s safety, well-being, and development remain the highest priority.