Nigerian Case Law on Child Custody

I’ve received a lot of enquiries on custody of children in Nigeria and decided to write an update with some decisions made by the courts.

In Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 – the court of appeal held –

On the right of parents over custody of children of a marriage

The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a right to protect that legal interest.

On Equal Rights of parents over custody of the children of the marriage

In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.

One of the questions that the court of appeal considered was whether or not the appellant (mother) had a right to take the children away from the matrimonial home before a formal order of custody made by a court of competent jurisdiction to determine the issue of custody.

The respondent (father) had asked an Owerri High Court to declare his wife did not have the right to remove the children from their school and relocate then elsewhere without a prior order of the court. The court of first instance sought to compel the mother to return the children till a determination of custody.

The mother appealed the judgement and her appeal was upheld. The court cited the previous Supreme Court ruling in Williams v. Williams (1987) that held both parents have the same right to custody of children pending a custody hearing.

“The law would be an ass indeed if a parent who has inherent legal interest in the children can’t do something to protect he children before the law can take its course” said Ogunwumiju JCA in his lead judgement in Nwosu v. Nwosu.

The court upheld a mother’s right to remove herself and her children from the matrimonial home in the event of  breakdown of the marriage, threat or fear violence and maintaining status quo ante bellum pending matrimonial proceedings.

Counsel for the respondent (father) went on to argue the children of the marriage were of ‘Igbo extraction’ and their father ‘rich and willing to have them around’. The court held that “the reasons given by the learned trial judge in arriving at the conclusion that the appellant (mother) had no legal right to take the children from the matrimonial home were unconstitutional”

“I have no hesitation in arriving at the conclusion that these declarations of the rights of the parents in relation to these children were based on a wrong premise which is that the rights of a very rich father are superior to the rights of the less affluent mother who is from a different tribe. There is discrimination on the basis of tribe, sex and financial means.” – Ogunwumiju JCA

In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that “Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”

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16 Responses to “Nigerian Case Law on Child Custody”

  1. Bukola Says:

    I think a woman needs to get a very good Lawyer who would represent her interest well. Some Lawyers indirectly work in the favour of men even when they are supposed to represent their Clients. Some Lawyers can be very misogynistic regardless of their gender. I have seen where a female Lawyer did nt represent her Client well due to a similar situation where the man has (d) more money than the wife.

    In all, get a very good Lawyer, but I would add get a Feminist Lawyer like Lesley Agamz. lol

  2. fola Says:

    How can i get your contact details please. I need your services

  3. Peter Akwah Says:

    By Nature and by critical overview of the issue of children custody,women are suppose to have such , while the men maintain the financial custody of the children welfare.

  4. Elijah Odunayo Says:

    How do I get a good lawyer please help, a family member got impregnated guy and initial he accepted the pregnancy, after birth the lady was maltreated in the family house and was kicked out one early morning and the family of the guy did not bother to look for the baby or send any form of care at all. The baby was forgotten. Now, 12 years later the mother of the man says she wants to take custody of the child from the ladies family. Please Help Us oooh

    • Elijah Odunayo Says:

      How do I get a good lawyer please help, a family member got impregnated guy and initial he accepted the pregnancy, after birth the lady was maltreated in the family house and was kicked out one early morning and the family of the guy did not bother to look for the baby or send any form of care at all. The baby was forgotten. Now, 12 years later the mother of the man says she wants to take custody of the child from the ladies family. Please Help Us oooh. We are in Lagos Nigeria. Contact email is ayoomo@live.co.uk

  5. MOFOLUWASHO ELIJAH Says:

    Good evening sir,my name is Folusho.I got married in 2013, and I have a 2year2month old baby girl. I am really considering divorce, but I want to know if I will be given the custody of my daughter. I am working and earning good salary so taken care of her is not a problem. But I want to be sure about the custody of my daughter b4 going for a divorce. Thank you Sir.

    • mz_agams Says:

      Custody is decided in the best interest of the child. You will have to prove that you can meet the child’s best interests and that is a bit more complex than salary and having a job

  6. olabisi Danmole Says:

    My name is Olabisi Danmole married for 11yrs with 2girls of age 11 and 8 a customary court granted there father the custody of this girls and I appealed but the case was taking too long for 2yrs without any hope now my husband as the money after making me to be a fulltime housewife for 11yrs. What can I do.

  7. Kimba Levi Says:

    Hello, i would like to get your advice on a custody matter that i have been involved in for the past 2years now, over my son who is 9 years old and was born out of wedlock. I acknowledged paternity when the mother claimed i was responsible for the pregnancy and accepted to marry her. I started catering for her and the child until after the birth of the child up until this custody battle started (I have tellers for school fees since he started school and evidence of bank transfer to the mothers account for his up keep).
    She abandoned the boy with her mother when she got admission to school in another state and rarely comes back home. After 3 years she decided to end our relationship and rescind from our decision to get married. I noticed the boy was neglected as her mother was not taking adequate care of the boy (i have evidence of medical treatments). When i complained, she and her mother started fighting me with the police, who locked me up and took my son from me. After taking the boy from me they went ahead and arrested my mother and detained her because i went to court. Since then i discovered they removed him from school and kept him at home without going to school, while the mother was going to her school.
    I wrote a petition to the CP, but they came and fought in the police station, then the police asked me to go to social welfare to complain. They came to social welfare and the mother of my son started lying, claiming that i raped her when she was a minor and they fought the Director of gender services who only insisted that the child should have access to his father and provisions for maintenance. The director was now scandalized and petitioned alongside other concerned person who tried to intervene. Through the influence of one of her uncle who retired from the agency and also influenced the police who was their tribe maltreated me and my mum.
    I petitioned the Human rights commission and they were invited, but they refused to honour the invite. While all this is going on, my son is on and off school and they are influencing parental alienation to the extent that when my son sees me he will be running away from me as if am a ghost. After a while, i discovered that they have relocated to an unknown place. Now i don’t know where my son is and what is happening to him.
    Just a few days ago my Neighbour told me that he saw my son with the grandmother during school hours for over a week. I approached the human rights commission to inform them of this they now told me that they have written to the police to institute criminal charges against them and that they have received a pre ligation notice form them after the police invited them.

  8. mz_agams Says:

    Looks like you are doing everything that can be done for now. Keep it up.

    • Kimba Levi Says:

      should i go to court and file an exparte motion to remove him from their grasp or wait for the outcome of the matter in human rights. i am restless because i have everything to give my son the best but they don’t and they insist on holding on to the boy without any proper care and they wont allow me to provide for him.

      • mz_agams Says:

        yes, speak to a lawyer

        • Kimba Levi Says:

          Good day, i have contacted several lawyers, some say i should abandon the boy when he grows up he will look for me, that the court cannot give me custody because i dint marry the mother. Some of them just want to exploit me by charging exorbitant fees N250K – N500K.
          Meanwhile, the National Human Rights Commission has written to the police to institute criminal charges against them for contempt. she claimed no one is depriving me access to my son or depriving me of providing for him. The police then asked me to go see my child, on getting to there house my son heard my voice and rushed out with excitement to see me, hit my son back into the house and locked him inside she again caused a pandemonium and started calling me a thief and she subsequently called the police alleging that i came to kidnap the my son, while he was peeping through the window. The Human Rights representative honoured the police invitation to give their statement and the mother of my child claimed that my son belongs to her parents that i must pay them off before i can have him. She was asked to inform her parents of the resolution and revert. No time was given.

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