First of all we really need to stop thinking in terms of ‘ownership’ of children. Children are not chattel. You do not own a child. They are little people. Dependent little people and adults are parents, guardians, care takers and providers. Not owners.
That said what people usually mean when they ask that question is who gets ‘custody’ when the parents of a child are separated, divorced or even never married. Or who the child lives with because the parent a child lives with will influence the child’s future behaviour and personality.
Both parents have an equal right to raise, influence and make decisions for their juvenile offspring. (Nwosu vs. Nwosu  8 NWLR) Where the parents are cohabiting there is no usually issue and in many households the father assumes the role of head of household and makes decisions for everyone else with or without consulting his wife, the mother. It all depends on their personal dynamics.
Custody issues arise where either party wants to leave or end the relationship between the parents of a child or children. In Nigeria most men seem to think that they ‘own’ the children and presume that they will get custody especially of male children. Then again most men seem to think they own their wife too.
Both the Matrimonial Causes Act and the Child’s Right Act are clear that issues of custody are to be decided in the best interest of the child and the courts have held that neither parent has an automatic right to custody.
If you are in a statutory marriage (that is one registered at the Marriage Registry and issued a Federal Government Certificate) and want a divorce, judicial separation or nullification of that marriage and believe that the best interest of the children is served with you or a woman in a violent abusive marriage that stays because you won’t leave without your children here is what your lawyer needs to do;
- After drafting and filing our petition for judicial separation, divorce 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 temporary custody simultaneously.
- The court will hear the ex parte motion and make a ruling which will be served on your spouse (The Respondent) with the notice of petition and the motion on notice for the same interlocutory relief asked for in the ex parte motion. The court will set a date before the exparte ruling expires in 7 days to hear the motion on notice thus giving the respondent a chance to challenge your request to the court for custody pending the determination of the main petition.
- After hearing the motion on notice and the respondents answer the court will either uphold its previous ruling or make a new one. This ruling is only binding till the matrimonial matter before the court is decided and then the issue of custody will be considered again and a final ruling be made at the end of the trial.
- Either party to a matrimonial petition can apply for an interlocutory order for custody.
The court will seek to determine what is in the best interest of the child and will consider the child’s age, gender, special needs, living environment, child care arrangements, plans to further the education of the child, financial ability of parent proposing arrangements, and the parents temperament and lifestyle. However, financial privilege alone is not enough determinant of a child’s best interest. (Nwosu vs. Nwosu)