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.