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January 21, 2018
February 11, 2018
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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 a number of factors.

What constitutes “interest of children” which a court must consider before making an order of custody?
There is no stated rule of what constitutes 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”.

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 is bound to observe. However, whether a court will follow the general belief that it is better 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/her wishes.
However, the child’s view may emerge from welfare reports and will be taken into account. The court usually treats the wishes of the child with caution as this may be coloured either by his age or a parent’s 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 in favour of such party.
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 or her 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 the change of the custody. This may result in psychological harm to the child. In such a case, the court may order that the custody remains with the parent already taking care of the child.

vii. Nationality of Parent
The courts would not discriminate between a Nigerian or Non-Nigerian parent in an award of a child custody. The primary consideration is the welfare of the child.

viii. Equality of Parents
Equality of parents presupposes 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.

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 the discretion to make such order in respect of custody, guardianship, welfare, maintenance, advancement or education of the child as it thinks fit.

Section 71(2) of the Matrimonial Causes Act provides that:

“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.

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. The custody orders the court may make include:
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/she 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 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.
The modern approach 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 & 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, 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 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 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 ex-parte application or application on notice is made.

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 has 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 the 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.

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 the custody of a child born outside of wedlock. The paramount consideration shall be the interest of the child.


In the course of the divorce proceedings, the court may make an order as to the maintenance of a child. Pursuant to the provisions of the Matrimonial Causes Act, any child below the age of 21 is automatically entitled to a maintenance. However, the maintenance order may be made in favour of a child above 21 years in exceptional circumstances. The maintenance order the court may make include welfare support, education advancement among others.

Meanwhile, an unmarried couple seeking an order of a child maintenance in Nigeria may do so pursuant to the provisions of the Child Rights Act or Child Rights Laws of the various states. The domicile of the parties is not required to institute such action like divorce proceedings, as by virtue of residence in such state will qualify the party to institute such action. A married couple not seeking a divorce, but just the maintenance of the child may institute an action pursuant to the Child Rights Act or Child Rights of a state.

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 only the material provisions in the house, good clothes, food, air conditioners, television, but it is more of the happiness of the child and his or her psychological development.

Written by Family Law unit of the Resolution Law Firm


  1. I need your help says:

    Any time I and my husband have issues he is always telling me, he will divorce me and take custody of the children but before he does that I want to be the one to do it before he gets unawares.

  2. Catherine says:

    I married him at a naïve age n he is way older than me. I was advised by family not to go ahead but I stupidly insisted. He convinced me to have a court wedding because I was pregnant and he promised to pay my bride price and complete the marriage rights after then. Now he doesn’t even want 2 do anything. My family had 2 call me back because he doesn’t even have regards for even my mother. I’m living in my family house for 2years now and he hasn’t still come to do anything to take us(I and the kids). He still insults me and my family and I have been d only one taking care of the kids.
    I need to know how to go ahead with the divorce process cos I’m tired.

  3. Ere says:

    I have been abused both physically and verbally on several occasions,with the pregnancy of my two boys I was seriously beaten and a few months back here in the presence of my children now 5 and. 7 . I have lost confidence in the marriage and I no longer wish to be in it.
    I would equally want custody of the kids because I don’t want them in such selfish and violent environment.
    How do I go about it ?Pls.

  4. Cynthia says:

    Hello sir please I have a daughter of 2 years and my husband has filed a divorce here in Nigeria ,he is living outside , our daughter was born here but she is now a citizen of Norway but I’m staying here now cos of many circumstances,pls I think of my daughter’s psychological well-being cos the father wants to take her,im qualified registered nurse here please will my husband take custody of our child,thanks

  5. Anonymous says:

    How to enforce a court judgement for maintenance and want to know about girl custody.

  6. Seun says:

    There has been several fights in my nine years of marriage. The last one was almost murderous so I want a divorce. How do I go about it?

  7. Joseph says:

    Sir,I’m a serving corps member. About nine months ago,I got a girl pregnant and when she called my attention to it,I didn’t deny it.

    As issues start developing,she said that I should come and pay her bride price and marry her off,but I promised her to do that after my service because as you are serving,you are not allowed to interfere in any irrelevant matter.

    She told me that she was uncomfortable with her house,I sent her to my elder sister’s house in portharcour for a mean time because I didn’t my village people to know for now until the baby is born.

    However,a verbal altercation broke out between her and my sister as she’s always in touch with her mother who vehemently refused her leaving their house in the first place. She verbally insulted my sister,refused to apologise and stealthily left the house and ran back to Asaba without her bag even as the pregnancy has increased heavily. As this was happening,she never called me to here from me,only calling her people.

    This scenario actually severed my family and her family relationship,but I still kept in touch for the sake of the baby.

    Suddenly,she sent me a text that she wouldn’t want me to be calling her again. I kept calm for a while. As issues developed,they started calling me again that doctors want me to sign certain documents as the child may be born through CS. By then I was in Ibadan so I couldn’t make it.

    Now the baby is born,they called me,I returned her bag to her,snapped with the baby and mother,and left and promised to come back.

    Now,they called me that I should come and collect the baby wears and some money I gave to the girl as instructed by her mother and that they don’t want me to come closer to the baby again even when the baby resembles me and the mother knows?

    I want to sue them for this because I want the baby and I don’t see the possibility of the marriage holding again as lots of things have gone wrong.

    What should I do please?

  8. Austin says:

    we were formally married & are seperated for about five years now. we have all moved on with our lives, but becourse of the under age of our two kids, l allowed her to keep their custody. right now l need to custody of the children & she is resisting it, even for a holliday spray. while am filling a divource case against her, can l approach the social warefare to assist me have the company of the children for this Christmas holliday period

  9. Tase says:

    I need to know what the divorce process is like cause I need one urgently.I have been out of the country for over a year as the frustration from my marriage made me to want to stay far from him.The emotional torture was unbearable.Kids are involved and I want what’s best for them and definitely not with him.

  10. Weyinmi says:

    I need a divorce urgently, we have been separated for over 1year still the insult and emotional crisis is constant.

  11. Olu Ajetunmobi says:

    I write to express my experience and seek solution to the predicament being faced with respect to taking custody of my Son. I and my wife are presently separated as a result of persistent quarrels. I definitely asked her to pack out of my house when she became violent and no peaceful coexistence was attainable any longer in the Union before it led to criminal offence of killing either of the party ourselves through fighting. At this point, her families only saw senses in whatever she said and no longer interested in my view.
    She had two daughters for me and a son. I took custody of the two daughters. At the time she packed out she was still conceiving the pregnancy of the only son after which I was responsible for her needs despite not staying under same roof. I paid for anti natal and the entire delivery bill at d hospital.
    I named the boy at the hospital and took her home, where she rented after being discharged from d hospital. I visited her often , sometimes with the her daughters that are with me and gave whatever money I could for her upkeep and the baby, till d baby got above one year. sometimes the daughters spend holidays with her. At a time , while I visited her, she told me she could be traveling out of d country and I ask her where, she said USA bcos she has her father there. I ask her what will happen to the baby boy and she said she will take him to her aunty somewhere in surulere, Lagos and that she and I will go there, so that when she goes I will have access to visit the boy. I frowned at such decision and demanded that the boy should be in my custody. she pleaded and I granted her plea. All she could do was to take the boy there without any further notification and only called me she was at Airport ready to board plane abroad. I felt angry and asked her why she did such, but she could not give a reason but later appealed to me for forgiveness.
    some months later, she called to asked of her daughters, I allowed her to speak to them but she never connected me or either revealed the exact place she took the boy to rather she boycotts our discussion on the boy.
    At this juncture, I don’t want to take law into my hands given the various unprofessional advice being offered by friends and families, therefore I need ur professional and legal advice on my predicament bcos I love the boy and miss him too. what should I do?

  12. Noah A George says:

    Hi,i tead ur acticle on child custody and i think it really made wife worked out of our marriage of 13 yeats.ever since we got,married,i have never been happy and ive just been,msnaging the situaton since then until one faithful sunday when out of a small quarrel ,xhe packed her things.a day later,she called friebds to beg me on her behalf. Which i declined.i stop my ground that the traditional rights of killing either a goat or a chicken,be offered before she can bring her stuff in to my house back.we were on this when a woman of about 74 year whom she had worked for as a housemaid,came to mu house to instruct her to pack her stuff and take my 2 children with them.pls i need ur legal advise and support on how to take custody of,my children,,especially my 4 year old daugther.because she has been able to brainwash the boy,who is now 10 years old.i really love my daughter and i miss her dearly.
    Yours sincerely

  13. Mrs Ikegwuru says:

    Good morning. Pls how can a woman enforce an order for maintenance of child upon judicial dissolution of customary law marriage?

  14. InNeedOf ADivorce says:

    What are the grounds for divorce where extreme diabolism by the man and his family, emotional abuse and negligence, routine adultery ruined the marriage ? The woman is one with a lot of potential, but the husband and his family suppress the lady with witchcraft and diabolism and preventing her growth and success as they do not want the progress of any woman within their family ? The woman is tired of constantly fighting off demonic forces and wants to live a normal, fulfilling life with her children far away from the murkiness of their diabolism. What’s the best way to proceed with this divorce ?

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