Interim Child Custody Order Under Matrimonial Causes Act in Nigeria

Section 71 of the Matrimonial Causes Act is clear that the ‘courts shall regard the interests of the children as the paramount consideration when awarding custody of children in a matrimonial cause under the MCA.

This is supported by extensive case law.

The Supreme Court in WILLIAMS V WILLIAMS (1987) LPELR-8050 set out the principles on which custody is decided clearly;

“(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father.

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

A party to matrimonial proceedings can simultaneously file an ex parte motion for interim custody when filing a petition under the MCA under Order 14 Rule 23 (1)(c) which provides that;

23(1) “Where proceedings for ancillary relief have been instituted  seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings , the court may in a case of urgency, hear the proceedings, and make an order in the proceedings, ex parte.”

When filing an ex parte motion (which basically means that the applicant is asking the court to make a ruling without notifying the respondent, the other party in the matter) support it with an affidavit of urgency and also file a motion on notice with the same requests and arguments that will be served on the respondent while the interim order is in effect. And interim order will last for 7 days and within that time the court will want to invite the respondent to come and give his or her side of the story too. If the interim order lapses before the motion on notice is heard or decided the applicant’s lawyer can and should make a further oral application to the court to extend the life of the interim order.

This interim order will provide the legal basis for the applicant to retain custody of the children pending hearing of the motion on notice which will decide custody pending the resolution of the substantive suit which may be for divorce, nullity or judicial separation. The interim order will them be served together with the notice of petition and the motion on notice on the respondent.

Once an order is secured give the applicant the original copy and they can move with the children without fear of the other party taking them away or causing other mischief (like reporting to police they were kidnapped as some parents erroneously do) The applicant can prevent the respondent, the other party in the suit from taking the children forcibly away from him or her and should that party do so they will be in contempt of a court order.

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14 Responses to “Interim Child Custody Order Under Matrimonial Causes Act in Nigeria”

  1. fola Says:

    Good evening. Please how do I get in touch with you? Thanks.

  2. kiks Says:

    Hello,
    Please what is considered as tender age, specifically? Under 5 years?

    • mz_agams Says:

      Tender age is considered to be below 7 years, how ever the best interest of the child is the over riding consideration and which ever party can establish that

  3. Child Custody in Nigeria FAQ: Who Owns The Child? | MzAgams Says:

    […] or nullification and being assigned a court BEFORE serving your spouse your lawyer should file an exparte motion (known as an interlocutory relief) for temporary custody pending the determination of the petition AND a motion on notice for […]

  4. Fred Says:

    The Child Right Act 2003 is clear on issues concerning children in Nigeria.
    Herein reproduced are some section of the Children Right Act 2003

    Section 14. Right to parental care, protection and maintenance
    (1) Every child has a right to parental care and protection, and accordingly, no child shall be
    separated from his parents against the wish of the child except‐
    (a) for the purpose of his education and welfare; or
    (b) in the exercise of a judicial determination in accordance with the provisions of this Act,
    in the best interest of the child.
    (2) Every child has the right to maintenance by his parents or guardians in accordance with the
    extent of their means, and the child has the right, in appropriate circumstances, to enforce this right in
    the Family Court.

    Section 27. Abduction, removal and transfer from lawful custody
    (1) No person shall remove or take a child out of the custody or protection of his father or
    mother, guardian or such other person having lawful care or charge of the child against the will of the
    father, mother, guardian or other person.
    (2) A person who contravenes the provisions of subsection (1) of this section commits an offence and is
    liable on conviction‐
    (a) where the child is unlawfully removed or taken out of Federal Republic of Nigeria‐
    (i) with intention to return the child to Nigeria, to imprisonment for a term of
    fifteen years; or
    (ii) with no intention to return the child to Nigeria, to imprisonment for a term of
    twenty years;
    (b) where the child is unlawfully removed or taken out of the State in which the father,
    mother, guardian or such other person who has lawful care of the child is ordinarily
    resident, to imprisonment for a term of ten years; or
    (c) in any case, to imprisonment for a term of seven years.

    Section 69. Power of the Court to make order in respect to custody or rights of access to a child
    (1) The Court may‐
    (a) on the application of the father or mother of a child make such order as it may deem fit
    with respect to the custody of the child and the right of access to the child of either
    parent, having regard to‐
    (i) the welfare of the child and the conduct of the parent; and
    (ii) the wishes of the mother and Father of the child,

    The question is: in as much as both parents have equal right and automatic custody of the child as evidenced in Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 , and WILLIAMS V WILLIAMS (1987) ; will any of the parent be violating the provisions of section 14(1) and 27(1)? of the CRA (which is a municipal law) as well as instruments such as UN Convention on the rights of the child(article 35), and OAU Charter on the rights and welfare of the child (article 29) that are recognized under section 261 of CRA 2003
    261. Functions of National Committee
    (1) The functions of the National Committee are to‐
    (a) initiate actions that shall ensure the observance and popularisation of the rights and
    welfare of a child as provided for in‐
    (i) this Act;
    (ii) the United Nations Convention on the Rights of the Child;
    (iii) the Organisation of African Unity Charter on the Rights and Welfare of the child;
    (iv) the Declaration of the World Summit for Children;
    (v) the Dakar Consensus on National Programme of Action;
    (vi) such other international Convention, Charters and Declarations relating to
    children to which Nigeria is or becomes a signatory;

    The United Nations Convention on the Rights of the Child;
    Article 35
    States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction
    of, the sale of or traffic in children for any purpose or in any form.

    the Organisation of African Unity Charter on the Rights and Welfare of the child;
    ARTICLE 29
    Sale, Trafficking and Abduction
    State Parties to the present Charter shall take appropriate measures to prevent:
    (a) the abduction, sale of, or traffic in children for any purpose or in any form, by any person including parents or legal guardians of the child;
    (b) the use of children in all forms of begging.

    How do we reconcile this with provision of section 36(12) of the 1999 Constitution as Amended.

    • mz_agams Says:

      The best interest of a child is decided by the court during the course of the trial, that’s why its a interim custody order. The case law is very clear that a parent vacating a marriage has the right to leave with the children. Is is not ABDUCTION. The sections you quote do not apply in matrimonial causes and the CRA does not subvert the provisions of the MCA, S36(12) of the Constitution or any of the treaties Nigeria is party to that specifically relate to CHILD TRAFFICKING. To plead otherwise would be an abuse of the CRA and a subversion of its intent and meaning.

      • Fred Says:

        Thanks for your feedback. The Law is settled in any proceedings concerning a child ,the best interest of the child of the marriage as to custody and welfare is the paramount consideration. Both the Legislative and Judicial Arms of Government are in consensus on this principle of Law. Can we look the issue of Abduction of a child in line with the CRA 2003, since the CRA deals with all issues relating to a Child in Nigeria.
        S. 274 Suspension and inconsistency
        (1) The provisions of this Act supercede the provisions of all enactments relating to‐
        (a) children;
        (b) adoption, fostering, guardianship and wardship;
        (c) approved institutions, remand centres and borstal institutions; and
        (d) any other matter pertaining to children already provided for in this Act.
        (2) Accordingly, where any provision of this Act is inconsistent with that of any of the enactments specified in Subsection (1) of this Section, the provision of this Act shall prevail and that other provision shall, to the extent of its inconsistency, be void.

        The issue of abduction is crystal clear as per article 29 (a) of the Organisation of African Unity Charter on the Rights and Welfare of the child, and Section 27 of CRA 2003 (https://au.int/sites/default/files/treaties/7773-file-charter_en_african_charter_on_the_rights_and_wlefare_of_the_child_addisababa_july1990.pdf)
        Article 29 is titled ‘Sale, Trafficking and Abduction’
        State Parties to the present Charter shall take appropriate measures to prevent:
        (a) the abduction, sale of, or traffic in children for any purpose or in any form, by any person including parents or legal guardians of the child.

        Section 27 of CRA is titled ‘Abduction, removal and transfer from lawful custody’, and this comes under Use of Children in Other Criminal Activities
        S.27(1) No person shall remove or take a child out of the custody or protection of his father or mother, guardian or such other person having lawful care or charge of the child against the will of the father, mother, guardian or other person.
        The Treaty and Municipal Law are in tandem with the issue of abduction. The Treaty specifically stated that any person including parents or legal guardians should not abduct a child while the Municipal Law (CRA) emphasised on NO PERSON and AGAINST THE WILL (consent) of the father, mother, guardian or other person.

        If case Law as per you statement (‘the case law is very clear that a parent vacating a marriage has the right to leave with the children’.) gives any party to the marriage to leave with the child/children as evidenced in the case of Nwosu v. Nwosu (2012) 8 NWLR Pt 1301, in which 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. Is this not in conflict with the provisions of CRA 2003 S.14 (1) and S. 27 (1 and 2)
        Section 14 Right to parental care, protection and maintenance
        (1) Every child has a right to parental care and protection, and accordingly, no child shall be separated from his parents against the wish of the child except‐
        (a) for the purpose of his education and welfare; or
        (b) in the exercise of a judicial determination in accordance with the provisions of this Act, in the best interest of the child.
        Section 27 Abduction, removal and transfer from lawful custody
        (1) No person shall remove or take a child out of the custody or protection of his father or mother, guardian or such other person having lawful care or charge of the child against the will of the father, mother, guardian or other person.
        (2) A person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction‐
        (a) where the child is unlawfully removed or taken out of Federal Republic of Nigeria‐
        (i) with intention to return the child to Nigeria, to imprisonment for a term of fifteen years; or
        (ii) with no intention to return the child to Nigeria, to imprisonment for a term of twenty years;
        (b) where the child is unlawfully removed or taken out of the State in which the father, mother, guardian or such other person who has lawful care of the child is ordinarily resident, to imprisonment for a term of ten years; or
        (c) in any case, to imprisonment for a term of seven years.

        In the case between AFDIN VENTURE LTD & 2 ORS Vs. CHAIRMAN AMAC & 1 OR
        Suit No. /CV/545/2011 RULING DELIVERED ON THE 18TH DAY OF OCTOBER, 2012
        ‘I believe that, the FCT Act is an enactment of the national Assembly and within their legislative competence; the courts have no power to alter or vary same’. May I also refer to ONNOGHEN, JSC in case of CAN Vs. INEC (2007) 12 NWLR (Pt. 1048) 222 @ 275, where the learned justice has stated, ONNOGHEN, JSC in case of CAN Vs. INEC (2007) 12 NWLR (Pt. 1048) 222 @ 275, where the learned justice has stated, “My answer is simple that, the judiciary does not make laws that function or duty is by constitutional arrangement and provision assigned to the legislature, which in the case, has enacted the Electoral Act. 2006.” (http://www.fcthighcourt.gov.ng/?wpfb_dl=2334)

        With this reference, the CRA 2003 is an Act is an enactment of the national Assembly and within their legislative competence with respect all matters that relates to a child , what will be the position of the Law/or Court (taking into consideration Section 36(12) of the Constitution of the FRN )with respect to any parent who contravenes S. 14(1) and S. 27(1) and left with the child to an undisclosed location having relied on Case Law in Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 without going to Court to file an ex parte motion for an interim custody for over 6 months

        • mz_agams Says:

          It is a defence to prove that the accused person either:
          1. Claimed in good faith a right to possession of the child.
          2. Is the child’s mother or claimed to be the child’s father, in the case of an illegitimate child.

        • mz_agams Says:

          Section 27 of the Child’s Rights Act criminalises abduction and removal of a child from lawful custody with:
          15 years’ imprisonment, if there is an intention to return the child.
          20 years’ imprisonment, if there is no intention to return the child.
          Child abduction is also a criminal offence under section 371 of the Criminal Code. The section provides that a person who kidnaps a child is guilty of a felony and will be sentenced to 14 years’ imprisonment. It is a defence to prove that the accused person either:
          Claimed in good faith a right to possession of the child.
          Is the child’s mother or claimed to be the child’s father, in the case of an illegitimate child.

          The accuser would have to prove that the accused does not have ‘lawful custody’

        • mz_agams Says:

          You shouldn’t confuse this with international abductions…perhaps you may wish to research more on those

  5. Kimba Levi Says:

    can unwed father apply for an interim child custody order pending the determination of the suit?

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