Child Custody in Nigeria

There seems to be a presumption that all child custody matters in Nigeria will be decided in favor of the father. While it is true that under some customary law systems the father is privileged in custody matters this is not uniform or universal and does not apply to any statutory marriage under the Matrimonial Cause Act.

Under Sharia law custody is usually granted the mother; under Yoruba customary law, mothers are granted custody of female children and fathers of male children. In Igbo customary law custody is of weaned children is usually given to the father. Mind you Nigeria has numerous ethnic groups and customary laws vary broadly.

For a marriage to be subject to customary law the ceremonies for consecrating marriage under that particular system of customary law must have been complied with and the bride price must have been paid. If these conditions have not been met any custody of any children of the relationship will be automatically awarded to the mother and or her father.

A statutory marriage that comes under the jurisdiction of the Matrimonial Causes Act must be celebrated before a licensed marriage officer outside Nigeria or registrar of marriages within Nigeria between a man and woman that are previously single. Many foreign women have been manipulated with threats that they would lose custody and be deported forcibly.

Section 71 of the Matrimonial Causes Act is very clear that custody should be decided based on the child’s best interest. Case law has upheld this principle but mothers that want custody are held to very strict proof that they can maintain the children without regard to the courts powers to grant maintenance orders.

Mothers that have come to me for representation frequently describe the arduous proof they are made to provide that they have a personal residence, job and income before they are given custody. While it seems logical and fair that mothers are encouraged to have a job, child maintenance is supposed to provide the necessary financial support that she may lack to take care of her child or children.

If it’s in the best interest of the family that the spouses separate or divorce such as in cases involving domestic violence the spouse granted custody should receive maintenance and support from the other. Both parents should be and should remain financially responsible for their offspring.

However if either spouse was by mutual agreement or otherwise the primary care giver and did not work outside the home during cohabitation and is given custody in a divorce it would be questionable whether requiring that spouse to now work would serve the interest of the children.

Father’s that are asking for custody of children during divorce proceedings are equally required to prove that they can personally provide attention, care and nurture in addition to material needs and that they are fit to have custody.

Will the court automatically grant custody to a father that is also a violent drug addict and regularly disappears for months at a time?  No. Will the court grant custody to an abusive man that believes his wife is a witch and takes his children for strange midnight rituals and exorcisms? No.

Likewise the court will not automatically grant custody to a mother if she is a drug addict or a dangerously delusional religious zealot. Case law shows the child interests being paramount. Custody hearings are getting more sophisticated and judges are asking insightful questions about the best interest of a child in any given circumstance.

Generally custody of very young children is awarded to the mother. There is also a preference for awarding custody of male children to the father and female children to the mother but again this is not a hard and fast rule and circumstances of each case determine the best interest of the child/children.

Evidence of misconduct and moral depravity could however tip the courts judgment against the offending party when awarding custody. The case law needs to be carefully reviewed to determine what the courts consider moral depravity of sufficient seriousness to otherwise deprive a parent of custody.

The Child’s Rights Act of 2003 makes provisions for protecting children during a divorce but child custody law remains a product of Nigeria’s marriage laws and it remains to be seen how the CRA will be read and enforced.

 

For more on Nigerian case law and decisions on custody here 

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340 Responses to “Child Custody in Nigeria”

  1. fola Says:

    Good morning,
    Kindly send your email address. Thank you.

  2. kukenty Says:

    I am married to a divorce,her ex aandoned her child for 8years,i married her 4 years ago and i brought her son in,i have been a good father and husband ,we have another son together,i love them both.his father has surfaced to take the boy back after 8yrs of no help or financial assistance,what can i do?

    • mz_agams Says:

      If you married in the registry go to the court or go to the social welfare office. before he can take the child he has to prove that it is in the best interest of the child

  3. Ashabi Says:

    Hello,
    I sent a mail to you early this year and you replied me to go to the welfare to report. Having reported the case the father of my child is yet to adhere to the condition given to him. Please what is the next step for me to take because I would like to bring my daughter abroad.

  4. king val Says:

    Bless U pls at what age can child/children’s custody be taking over by the father

  5. Olaniyi Yetunde Says:

    I have a six month old baby girl out of wedlock nd d father has not been taking responsibility frm pregnancy till delivery but he came for her naming ceremony, im d only one dat is fully taking care of her always saying he doesnt hav money, nd doesnt show interest towards her welfare but his mum always call me to ask after d baby welfare nd very soon i will get my baby her birth cert pls advice me on wat im going to do,. Should i name her his surname ur advice is highly appreciated

  6. Charles bright Says:

    What if a father arrest his son not up to 18years of age claiming his doing the right thing. Because the son told him to stop drinking due to his illness!

  7. John Says:

    I have a case where a guy impregnated my sister whom he did not marry… For a long period he did not make any effort to come see my parents for any marriage rites. Unfortunately my sister died during child birth due to CS while staying with the man… Now it’s 1 year on now and the parents to the mother want to take custody of the child but he refused access to the child by mothers family… We want to go for legal action on this for the fact that he was not married to her neither did he pay any dowry… Now what are the chances of taking the child?

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