CHILD CUSTODY AND PRACTICE IN NIGERIA

• Where the child wishes to be in custody of the non-custodial parent.

The party relying on any of the above mentioned situation must establish the under mentioned to the satisfaction of the court. 1. Proof that the Custodial Parent is Unfit Here the party seeking the review of award of custody on this ground must show to the court that the parent in whose custody the child is not capable. This maybe where the parent having custody is shown to be abusive or careless.

The court can award custody to a party though in its view an unsatisfactory candidate as seen in the case of Oladetohun v. Oladetohun (supra) where the wife was confirmed unsatisfactory but the court still awarded custody to her on the basis that the issue would be revisited when the child is a little older. The court, here considered it to be in best interest of child of very tender age.

It suffices from the above mentioned case that if the husband proves that the wife’s behavior remained unsatisfactory when the child became much older. The court will take away custody from the wife and give the same to the husband.

2. Proof that the Child is having Substantial Problems the Custodial Parent Cannot Remedy

Under this situation the party seeking for the review of custody has to show the court that the child is having problems that the parent in custody cannot handle.

Instances of problem in the child’s life may include physical development (in case a female child who is in her puberty stage) psychological or health, related issues.

In DSD v SERA IGWALAH & BOLAJI PHILIPS (supra) the court relied on the argument of the non-custodial parent that a female child of puberty stage needs to be under the custody of the mother for proper directions. In the American case of Kisling v. Allison 343 S.C. 674 Ct. App 2001 , custody was reviewed in favour of the father, in part, because mother’s chaotic living situation and behaviour was causing the child undue stress and anxiety. 3. Proof of the Child’s Preference For a party to succeed in an action for review of custody of the child on the ground of the child’s preference, the child must have attained the age of reasoning. This situation usually occurs in adolescent or teenage years where the child who desire to develop a relationship with the non-custodial parent.

In determining the best interests of the child, the court must consider the child’s reasonable preference for custody. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.

The court may have to retire to chambers in other to interrogate the child to ascertain the child’s reasonable preference. This view was stated by the court in the case of ODOGWU v ODOGWU (supra) where the Supreme Court held that the court could consult the child’s wishes in considering what order to be made.

Though the case law dealing with a child’s preference shows that it is important, but it not necessarily a prevailing factor. In the American case of AIKEN v NELSON 292 S.C. 400, 356 S.E.2d 839, 840-41 (1987) , A teenage child’s preference to reside with his father was one factor in changing custody. However, in BOLDING v BOLDING 278 S.C. 129, 293 S.E.2d 699 (1982), the Supreme Court of America reversed a change of custody based on an eleven year old son’s desire to live with his father, finding that this desire alone was not sufficient to show that the change of custody would be in the child’s best interests. Custody of a Child Born Outside Wedlock Under the common law, a mother has right to the custody of an illegitimate child to the exclusion of the natural father of the child. For a father to be awarded custody in such a circumstance under the common law, he must establish that the mother is unfit to look after the child.

Under customary law, if a woman has a child by a man to whom she is not married, custody of the child is deemed to be the exclusive to the father of the mother, and this is so even if the child has been acknowledged by the father.

In the case of OKOLI v OKOLI (2003) 8NWLR (pt.823)565 at 580, the court of appeal discussed the custody of child born outside wedlock and held that the custody of a 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. Such a child cannot be subject to any disability or deprivation.

What Custody Options are Available upon Divorce or Separation?

The following are the various types of custody available to parents upon divorce or separation, depending on the circumstances of the case. At all times however, the court shall have regard to the interest of the child as paramount consideration. Types of Child Custody Legal Custody This type of custody gives one parent the right and obligation to make decisions about the child’s upbringing such as a child’s schooling, healthcare, and religious upbringing. Many states allow joint legal custody of a child to the parties involved if they have a Joint normal routine. This might be granted by the court to both parties jointly or severally. In a joint legal custody these decision making are shared by both parties. This mode of custody is the most common type of custody available. It allows both parents to make decisions about the upbringing of their child.

Conflicts can however often and do arise between the upbringing philosophies of the parents. This can lead to a bad environment for a child. Should a parent attempt to keep their child away from the other parent who also has legal custody, the aggrieved parent can enforce the custody agreement in court. This can also be quite expensive. Physical / Divided Custody This is the right to have a child physically live with each parent at some part of the year with reciprocal visitation privileges. At the time the child is in custody of one of the parents, such a parent has complete control over the child. Some states recognise joint physical custody where a child lives with each parent at equal amounts of time.

This type of custody allows each parent to spend a maximum amount of time with their child.

However, parents must live close to one another for this arrangement to work. Also, parents must have a workable and amicable relationship to avoid conflict for the children. Sole Custody In this situation, only the “custodial” parent has custody of the child. The other parent is typically permitted only visitation rights. A parent can have either sole legal custody or sole physical custody of a child. However, in most states, courts are moving away from awarding sole custody to one parent so as to afford both the child a balanced upbringing. The only exception is where there potential danger or harm to the child. Some courts grant generous visitation rights to the other party.

An advantage of this arrangement is that the same is usually least disruptive of a child’s life as stability helps the mental growth of a child positive.

It fosters a very limited connection of one of the parents to their children and often leads to heightened animosity between parents. Split Custody In this case, the court grants custody to one parent whilst care and control becomes the duty of the other. The result is that the parent vested with custody has power of control over the child and to take major decisions on the child’s future while the other parent controls the day-to-day physical upbringing of the child.

The modern approach however, is to vest the custody in both parents (with powers to make major decisions) and grant care and control to one of them. The court may also grant care and control to one parent without making an order as to custody. Temporary Custody This is where the custody of a child is awarded to a parent temporarily pendete lite.

This power can be exercised where in a matrimonial proceeding, a dispute with respect to custody, guardianship, welfare, advancement or education of the children of the marriage arises after the proceedings for the principal relief has been instituted. The petitioner or respondent may make an application for an interim order for custody pending the final determination of the petition. (Order XIV Rules 21 & 22 Matrimonial Causes Rules).

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 leave of court, before the ex-parte order is granted. Third Party Custody Where the court considers it desirable to do so, it may place the child under the custody of a third party i.e. a person other than the parents of the child. This can be either permanently or in the interim as long as it is in the Childs best interest. The court will make this order: 1.Where it is obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the child.

2.Where neither parties to the marriage has applied for the custody.

3.Where in the opinion of the court neither parents is fit to have custody of the child.

If custody is granted to a third party, the court may include an order for proper access to the child by the parents.

This power was exercised by Taylor C.J. in the case of NWUBA v NWUBA unreported suit no. WD/37/21 of 16/8/1971. Whilst a divorce suit was pending between the two parties, the petitioner/applicant brought an application for the custody of the children of the marriage. The respondent replied by also praying for the custody of the three children.

The court in awarding the custody to a third party stated that in awarding the custody of the children was best awarded to their grandmother, as this was in the best interest of the children. The court further ordered that its order is to remain in force until the determination of the petition. Other ancillary orders relating to visitors, and station of the children also followed. Joint Custody Joint custody exists where the parents are divorced, separated, or no longer cohabiting, or even if they never cohabited. This is also called shared custody. It happens when the parents share the decision-making responsibilities and authority for, and/or physical control and custody of, their children. This type of custody occurs when parents agree, or court orders, them to share the decision-making responsibilities that affect the Childs life.

Typically, the parents will agree to synchronise their schedules to make the arrangement work, or the court can compel them to. This does not translate to an equal or fifty-fifty time share, since each case depends on the child’s age, parent’s availability, desires and other factors. This normally occurs where the divorce or separation is not hostile.

Before an order of joint custody is made, the court must ensure that the parents would co-operate with each other otherwise, the order maybe in futility. In the case of Williams v. Williams (Supra), there was a reasonable prospect that the parents would co-operate. An order of joint custody was made in respect of the daughter of the marriage with the wife/appellant given the right to exercise care and control of the child whilst the husband/respondent was given charge of education of the child. The father was to pay for the costs of the girl’s education by way of settlement of bills to be prescribed by the mother.

Also in the case of BIBILARI v BIBILARI (supra) joint custody was granted to both parents. The court held that:

“…the Respondent and the Petitioner shall have joint custody of their daughter,....with the Respondent exercising physical care and control of the child while the Petitioner takes charge of and pays all expense incurred for her education and maintenance. The Petitioner shall forthwith give up care and control of … and hand her over to her mother, the Respondent. Payment for the education and maintenance of … will be by way of settlement of bills to be presented by the Respondent to the Petitioner as and when due. The Petitioner shall have reasonable access and right to visit … in the house where she lives with the Respondent as and when necessary and upon communication of such intention by the Petitioner to the Respondent.

Joint custody may be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent), or both joint legal and physical custody.

This method assures children continuing contact and involvement with both parents, and alleviates some of the burdens of parenting for each parent.

Unfortunately, there is the tendency for the children to be shuttled around, especially where the parents are hostile to one another. Parental non-cooperation can have serious devastating effects on children, and maintaining two homes for the children can be expensive. Bird’s Nest Custody Finally there is an unusual type of custody called the Bird’s Nest custody. Here children remain in the family home and the parents take turns moving in and out.

This type custody is not disruptive for the children. This is novel to our jurisdiction but rampant in developed jurisdiction.

It is however expensive and often disruptive for parents. It hardly works unless parents have other places to live in off days. Decision-making is still poses a problem, here as well.

A Cursory View of the Child's Right Law of Lagos state, 2007

The Child's Right Law 2007 was passed by the Lagos State House of Assembly and assented to by the Governor of Lagos State on the 28th of May, 2007 to provide a Law to enforce the rights of the child, and to amend and consolidate all legislations relating to the protection and welfare of the child in Lagos State and for other connected and incidental purposes. This law is particularly relevant to our topic of discussion since it also provides for the custody of children in other situations other than the above. The Family Court of Lagos By virtue of the provisions of sections 138 and 139 of the child’s right Law of Lagos State, the family court of Lagos State was established for the purposes of hearing matters relating to children. This Court makes a variety of decisions that affect children including placement and custody determination, safety and permanency planning, and proceeding for termination of parental rights. Whenever a court makes such a determination, it must weigh whether its decision will be in the ‘best interests’ of the child.

As it is the duty of the court to determine what amounts to best interest of the child, it must exercise due diligence in carrying out these functions.

In other to effectively carryout these functions as highlighted above the Family Court of Lagos State (Civil Procedure) Rules 2012 was made by the Chief Judge by virtue of his power under section 150 of the Child’s Right Law of Lagos State. Commencement of Matters Before the Family court In any proceeding where the welfare or custody of the child is in question, such proceeding must be commenced by way of an originating motion in the family court as prescribed in Order 6 rule 1 of the Family court of Lagos State (civil procedure) Rules 2012.

In respect to this, an action can be instituted by an appropriate