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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11 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.

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