The child custody after divorce in Nigeria primarily rested on the best interest of a child.
The term ‘custody’ itself is not defined in the Matrimonial Causes Act. However in Black’s Law Dictionary, custody of children is defined 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”.
Section 7(1) Matrimonial Causes Act provides:
“In the proceeding with respect to the custody, guardianship, welfare, 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 those Matters as it thinks proper. Who gets the custody of a child after divorce depends on number of factors.
• INTEREST OF CHILDREN
What constitutes “interest of children” which a court must consider before making an order of custody?
There is no stated rule of what constitute interest of a child. It will depend on the circumstances of each case. Karibi-Whyte JSC in the case of Williams v. Williams 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”.
• DUTY OF COURT IN DETERMINATION OF INTEREST OF THE CHILD
In the determination of the interest of the child in making a custody order, the court will take into consideration the ages of the children; the arrangements made for their accommodation, education, welfare and general upbringing, as well as the conduct of the claimants. By and large, factors the court may consider in granting the custody of a child include the followings:
i. Age and Sex of the Child
Age: The fact that a child is of a tender age does not necessarily mean that his/her custody will always be granted to the mother but the court will readily do so if it is in the interest of the child.
The law does not lay down any rule or principle which the court are bound to observe. However, whether a court will follow the general belief that it is better that the custody of very young children are left for their mother will depend on the circumstances of the case.
Sex: it is generally believed that girls should be in the care of their mothers and boys with their fathers. Again there is no rule of law in that respect which the courts are bound to observe. It will depend on the circumstances of the case.
ii. The Wishes of the Child
In some cases, the judge in a custody proceeding, may interview the affected child privately particularly where the child has attained an age when he/she is capable of expressing his wishes.
In other cases, the child’s view may emerge from welfare reports and will be taken into account. The court usually treat the wishes of the child with caution as this may be coloured either by his age or the parents influence.
iii. Education and Religion
The court usually gives consideration to the advantages and disadvantages of any arrangement for the education and religion of the child. Matters of religion affect the welfare of the child and courts are anxious to ensure that whatever decision is reached in this respect reflects the child’s best interest.
iv. Conduct of the Parties
The conduct of the parties to the child is a matter to be taken into account in determining what the best interest of the child is. 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 court’s discretion must not be exercised as a punishment for one party or a reward for the other party.
v. Adequacy of Arrangement for the Child
Where a party seeks the custody of a child of the marriage, he/she is required to set out the proposed arrangement for accommodation, welfare, education, upbringing and other arrangements of the child. Unless the party sets out these facts, the court may be reluctant to consider the question of custody.
It should be emphasized that the mere fact that a spouse has material wealth cannot per se be regarded as being in the best interest of a child of the marriage. But the fact that one spouse is in a much better financial position to bring up the child and to provide him better accommodation may be decisive. Also the party who is in a better position to offer the child good accommodation may be preferred.
vi. Medical and Psychological Factors
If custody of a child has been with a parent for a considerable period of time, care must be exercised in change of the custody. This may result in psychological harm to the child. In such a case, the court may order that the custody remain in the parent.
vii. Nationality of Parent
The courts would not discriminate between a Nigerian or Non-Nigerian parent in award of custody. The primary consideration is the welfare of the child.
viii. Equality of Parents
Equality of parents presuppose that either parent may be entitled to custody of the child. The court is not entitled to prejudge which party will have custody before considering the interest of the child.
• DISCRETIONARY POWERS OF THE COURT IN CUSTODY CASES
From the provision of Section 71(1) of the Matrimonial Causes Act, it will be appreciated that the Court has a wide discretion in custody matters. The Court has a discretion to make such order in respect of custody, guardianship, welfare, advancement or education of the child as it thinks fit. Rarely, will the exercise of the discretion be set aside.
• THE ROLE OF WELFARE OFFICERS IN CUSTODY CASES
Section 71(2) of the Matrimonial Causes Act provides:
The court may adjourn any proceedings within subsection(1) of this section, until a report has been obtained from a welfare officer on such matter relevant to the proceedings as the court considers desirable and any such report may thereafter be received in evidence.
The report of the welfare officer is expected to cover all aspects of the life and welfare of the child in question. The relationship of the child with the parents and other arrangements for the welfare and education of the child should also be included in the report. This will assist the court in making its order.
• TYPES OF CUSTODY ORDERS THE COURT MAY MAKE
There are various custody orders which the court may make depending on the circumstances of the case. At all times, however, the court shall have regards to the interests of the child as the paramount consideration.
I. Divided Custody
This is a situation where the child lives with each parent part of the year with reciprocal visitation privileges. At the time the child is in custody of one of the parents, he has complete control over the child.
II. Split Custody
In this case, the court grants custody to one parent and care and control to the other. The result is that the parent vested with custody has power to control major decisions of 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 any order as to custody.
III. Joint Custody
Joint custody involves both parents sharing responsibility and authority with respect to the children. This may involve joint “legal” custody and joint “physical” custody. The effect of this is that both parents are involved in the physical sharing of the child as well as participating in decisions affecting the child’s life such as education, medical problems etc.
This is in contrast with 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 and desires and other factors.
Before an order of joint custody is made, the court must ensure that the parents would co-operate with each other otherwise, it will be an order in futility.
IV. Temporary Custody
This is 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 in a matrimonial proceeding, a dispute with respect to the 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 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 exparte order is granted.
V. Third Party Custody
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.
The Court will make this order:
• Where it is obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the child.
• Where neither of the parties to the marriage have applied for the custody.
• Where in the opinion of the court, neither of the parties to the marriage is a fit and proper person to have custody of the child.
If custody is granted to a third party, the court may include an order as to proper access to the child by the parents.
• CUSTODY OF A CHILD BORN OUTSIDE WEDLOCK
Under the Common law, a mother has a 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 the Customary law, if a woman has a child by a man to whom she is not married, the proper guardian of the child who is entitled to custody is the father of the mother and this is so even if the child has been legitimated by acknowledgement of the father.
However under the Matrimonial Causes Act, Section 69 defines “children of the marriage” for the purpose of custody to include:
o Any child adopted since the marriage by the husband and wife or by either of them with the consent of the other.
o Any child of the husband and wife born before the marriage whether legitimated by the marriage or not; and
o Any child of the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband or wife. So however that a child of the husband and wife (including a child born before the marriage, whether legitimated by the marriage or not) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage
Therefore under the Act, the position of the customary law or common law will not apply to custody of a child born outside wedlock. The paramount consideration shall be the interest of the child.
It is noteworthy that in the award of custody of a child by a court, the paramount interest of the child is the main key, however it must be understood that the welfare of a child is not the material provisions in the house, good clothes, food, air conditioners, television, all gadgets normally associated with people- it is more of the happiness of the child and his psychological development.
Written by Family Law unit of the Resolution Law Firm