Child Custody and Practice in Nigeria

The term custody is defined in Black’s Law Dictionary 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” The court of appeal also defined ‘custody’ in the case of OTTI v OTTI 1992 7 NWLR pt.252 187 at 210, 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…”

Section 71(1) Matrimonial Causes Act provides that:

“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”

It can be said from the above provision and case law that child custody pertains to the care, control, maintenance and preservation of a child in all respects and the court can grant same to any of the parties to a marriage. For the court to do this it must:

• Consider the interests of the children, which is paramount

• Exercise discretion as to the proper order to make as a fallout of its decision in (1) above. Interest of the Child What constitutes the interest of the child depends on the circumstances of each case. For example in the case of WILLIAMS v WILLIAMS (1987) 2 NWLR (Pt.54) at 89 Karibi Whyte, J.S.C stated 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. What the court deals with is the lives of human beings and ought not to be regulated by rigid formulae. All the relevant factors ought to be considered and the paramount consideration being the welfare of the child. By paramount consideration, I mean pre-eminent and superior consideration”

Hence, because what constitutes the interest of a child is circumstantial the same is not limited to material provisions but a composite of issues. This includes those things that will enhance the psyche, physical and moral development of the child, as well as things that would promote the happiness and security a child in its tender years. In the case of ODOGWU v ODOGWU (1992) 2NWLR (Pt 225)539, Belgore, J.S.C observed as follows:

“welfare of a child is not the material provisions in the house, good clothes, food, air-conditioners, television, all gadgets normally associated with the middle class, it is more of the happiness of child and his psychological development. While it is good a child is brought up by complementary care of the two parents living happily together, it is psychologically detrimental to his welfare and ultimate happiness and psychological development if material care, available, is denied him” A Child under the Law Under Nigerian law a child has a wide definition. It includes, and applies to an adopted, after-born, or illegitimate child or stepchild. It can be safely said that within the purview of the Constitution of the Federal Republic of Nigeria, the circumstance of the birth of a child, in the sense of being legitimate, illegitimate or adopted is not relevant.

In fact, the Child’s Right Act expanded the definition by simply stating in section 262 that a person under the age of eighteen years is regarded as a child.

Determination of Custody and the Interest of the Child

In order to determine the interest of the child in making a custody order, the court will take into consideration the age of child; the arrangements made for accommodation, education, welfare and general upbringing, as well as the conduct of the relevant party/parent applying for the child’s custody.

The court in the case of ALABI v ALABI (2007) LPELR-CA/IL/17/2006stated 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 the child has for each 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 age custody should normally be awarded to the mother unless other considerations make it undesirable etc Age and Sex of the Child • Age Usually, the court prefers that the mother of a child of tender age ought to be granted custody. This is usually not a rule of thumb as there are situations where custody has been granted to the father or any other person in loco parentis, if it is in the interest of the child.

In the case of OLADETOHUN v OLADETOHUN Suit No: HD/111/20 of 6/7/71 unreported although the court found the mother of the child to be an unsatisfactory wife, and that she was given to the practice of juju and also that she has been shown to be a bad mother, it nevertheless granted her the custody of the only child of the marriage (who was three years old) on the ground that doing so, albeit temporarily, was in the best interest of the child. Even at that the court made provisions for a review of the issue of custody when the child becomes a little older.

However in the case of LAFUN v LAFUN (1967) NMLR 401 ,the court stated that it is generally presumed that a child of tender years will be happier with the mother, and this presumption would only be vitiated by clear evidence to the contrary, such as immorality of the mother, infectious diseases in the mother, insanity and cruelty to the child, which are matters to be tried. It was held that owing to the moral degeneracy of the respondent (mother) it would not be in the best interest of the child for the respondent to have access to the child who was in her formative years and could easily be negatively influenced • Sex 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 by it. It is believed that the best interest principle will suffice in this respect.

In BIBILARI v BIBILARI Suit No: FCT/HC/ PET/176/11 , the high court of FCT in considering the question of custody a girl child who was 7 years old followed the decision of the Supreme Court in the case of WILLIAMS v WILLIAM (supra). The Court observed as follows:

In WILLIAMS v WILLIAMS supra, the Supreme Court grappled with a scenario not markedly dissimilar from the present. In that case, both parents were at daggers drawn over the custody of a six (6) years old girl child. His lordship, Oputa, JSC opined at p. 92 of the Report that “there are periods in a girl’s life when she is undergoing the slow advance to maturity, when she needs her mother to discuss and answer her many questions about herself, her development, both physiological and psychological”. I reckon that the above observation applies with equally force to ….who is presently seven years old and will need her mother to discuss and answer her many questions about herself when her slow advance to maturity sets in a few years from now.

In OYELOWO v OYELOWO (1987)2 NWLR (pt.56)239, both parents applied for the custody of their two male children aged ten and nine years respectively. The children had lived with their mother for two years since the separation of their parents. The trial judge held that:

“As male children, their rightful and natural place is their father’s home. It does not matter how long they stay away from it they will one day long for it”

The court of appeal agreed with the opinion of the trial judge. The court per Nnaemeka Agu drew attention to the importance of the sociological background in the interpretation of section 71 of Matrimonial Causes Act. This decision has been widely debated; however, the general concession favours the preeminence of the child’s best interest. • The Wishes of the Child At times the court may take the child into confidence to ascertain his/her wishes. This happens when the child has attained the age of reasoning which is usually between ages 6 – 17. Should the child be younger, the court may resort to welfare reports to determine where the interest of the child will be better served.

The Supreme court in the case of ODOGWU v ODOGWU (1992) 2 NWLR (Prt.225) 539 at 560, held that the court could consult the child’s wishes in considering what order to be made. It was also held that custody proceedings could be adjourned to the Judge’s chambers where in an informal hearing; the children’s view could be assessed along with those of the parents. • Adequacy of Arrangement for the Child Apart from the considerations, implied by law and practice discussed above, the court also considers the adequacy of the arrangement proposed by the party seeking the child’s custody this includes the proposed arrangement for accommodation, welfare, education, upbringing and other arrangements for the child. If the party fails to set out these facts, the court will be reluctant to consider the question of custody.

It is to be noted that, the fact that, a spouse is more affluent does not necessarily assure that a child’s best interest will be better served. Rather the fact that one parent is in a much better position to bring up the child and to provide a better accommodation is usually a decisive factor.

In DAWODU v DAWODU (1976) CCHCJ 1207, 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.

However, where both parties have made equally good arrangements for the welfare of the child the court will consider the misconduct on the part of the each or either of the parties. In ALABI v ALABI (2007) LPELR-CA/IL/17/2006 the court held that

"Although misconduct on the part of the party to the suit is not the paramount consideration, where parties have made equally laudable arrangements for the welfare of the child and its upbringing, misconduct may tilt the balance in favour of the other party. • Medical and Psychological Factor Research in developmental psychology tells us that children need stability and security. They are harmed when they lose their ongoing intimate relationships with those few adults who nurture them and provide care.

Hence a stable background serves as a secure base from which the young child ventures forth into the world. Children who enjoy relationships of intimacy and security with their closest caregiver(s) in the first three years are more likely than those who do not, to be more adventurous. They are usually independent, friendly, intuitive and intelligent. They relate better with their peers and they are in a better position to succeed in life.

Thus the court in most cases may order that custody remain with a parent; the child has spent considerable time with. This is to prevent psychological harm to the child. In HvH and C (1969) 1 ALL E.R. 262, the court in this case awarded custody to the father with visiting access to the mother, since in all the circumstances it would be upsetting to remove the child suddenly from a house which he was familiar with. • Equality of Parents In determining issues pertaining to custody and access, the court treats both parents equally. Equality of parents presupposes that either parent is entitled to the custody of the child. The court is not expected to prejudge which party will have custody before considering the interest of the child. In Williams v. Williams (supra) the Supreme Court held inter alia that with regard to the custody or upbringing of a minor, a mother shall have the same rights and authority as the law allows to a father and the rights and authority of mother and father shall be equal and exercisable be either without the other.

Equality of right is therefore the basic premise upon which court considers custody cases.

In the case of DSD v SERA IGWALAH & BOLAJI PHILIPS UNREPORTED SUIT NO: MISC/MCY however, the Yaba Magistrate court fell short in this respect when without balancing the equal rights of both parties prejudged the father with whom the child had maintained a stable life over the years by promptly awarding custody to the mother on the sole ground that the child is a girl.

It must be re-emphasised that courts should always have the interest of the child as paramount consideration. • Conduct of the Parties The conduct of the parents towards the child is a matter the court will put into consideration while determining the best interest of the child. In OKAFOR v OKAFOR (1976) 6 CCHCJ 1972the court refused to grant custody of a child of the marriage to a mother who had not seen the child physically for almost six years other than through photographs.

In like manner the court in KOLAWOLE v KOLAWOLE Suit No. HCL/45D/81/of 1/7/82 (Unreported) refused to grant custody to a mother who had once tried to kill the child.

Also where there are persistent acts of misconduct and moral depravity by one of the party this may be evidence of unsuitability of that party to be entrusted with the custody of the child. In Lafun v. Lafun (supra) the court not only refused custody to a child’s mother but also refused her access to visit. The court held that:

“owing to the moral depravity of the respondent (mother), it will not be to the best interest of this child (born in June, 1960) for the Respondent to have frequent access to him in his formative years when he could be influenced. When the child attains the age of 14 years, the Petitioner may allow the respondent access if he so wishes.

However, a parent may not be deprived of custody merely because of his or her conduct which might have contributed to the breakdown of the marriage. The Supreme Court in WILLIAMS v WILLIAMS (supra) held that the adultery of a party is not necessarily reason for depriving that party of custody unless the circumstance of the adultery make it undesirable.

Reviewing the Granting of Custody of a Child

It is necessary at this point to consider the situation where the court has had to revisit its decision on the placement and custody of the child. The cases earlier referred are replete with the decision to revisit the issue of custody at some point later on in the proceedings. Instances where the court can revisit the issue of custody are as follows: • Where the child has become a little older; • where the child is being maltreated by the parent in whose custody the child is;