Child Custody in Nigeria FAQ: Who Owns The Child?

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 [2012] 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;

  1. 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.
  2. 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.
  3. 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.
  4. 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)

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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.”

Child Custody in Nigeria

There seems to be a presumption that all child custody matters in Nigeria will be decided in favor of the father. While it is true that under some customary law systems the father is privileged in custody matters this is not uniform or universal and does not apply to any statutory marriage under the Matrimonial Cause Act.

Under Sharia law custody is usually granted the mother; under Yoruba customary law, mothers are granted custody of female children and fathers of male children. In Igbo customary law custody is of weaned children is usually given to the father. Mind you Nigeria has numerous ethnic groups and customary laws vary broadly.

For a marriage to be subject to customary law the ceremonies for consecrating marriage under that particular system of customary law must have been complied with and the bride price must have been paid. If these conditions have not been met any custody of any children of the relationship will be automatically awarded to the mother and or her father.

A statutory marriage that comes under the jurisdiction of the Matrimonial Causes Act must be celebrated before a licensed marriage officer outside Nigeria or registrar of marriages within Nigeria between a man and woman that are previously single. Many foreign women have been manipulated with threats that they would lose custody and be deported forcibly.

Section 71 of the Matrimonial Causes Act is very clear that custody should be decided based on the child’s best interest. Case law has upheld this principle but mothers that want custody are held to very strict proof that they can maintain the children without regard to the courts powers to grant maintenance orders.

Mothers that have come to me for representation frequently describe the arduous proof they are made to provide that they have a personal residence, job and income before they are given custody. While it seems logical and fair that mothers are encouraged to have a job, child maintenance is supposed to provide the necessary financial support that she may lack to take care of her child or children.

If it’s in the best interest of the family that the spouses separate or divorce such as in cases involving domestic violence the spouse granted custody should receive maintenance and support from the other. Both parents should be and should remain financially responsible for their offspring.

However if either spouse was by mutual agreement or otherwise the primary care giver and did not work outside the home during cohabitation and is given custody in a divorce it would be questionable whether requiring that spouse to now work would serve the interest of the children.

Father’s that are asking for custody of children during divorce proceedings are equally required to prove that they can personally provide attention, care and nurture in addition to material needs and that they are fit to have custody.

Will the court automatically grant custody to a father that is also a violent drug addict and regularly disappears for months at a time?  No. Will the court grant custody to an abusive man that believes his wife is a witch and takes his children for strange midnight rituals and exorcisms? No.

Likewise the court will not automatically grant custody to a mother if she is a drug addict or a dangerously delusional religious zealot. Case law shows the child interests being paramount. Custody hearings are getting more sophisticated and judges are asking insightful questions about the best interest of a child in any given circumstance.

Generally custody of very young children is awarded to the mother. There is also a preference for awarding custody of male children to the father and female children to the mother but again this is not a hard and fast rule and circumstances of each case determine the best interest of the child/children.

Evidence of misconduct and moral depravity could however tip the courts judgment against the offending party when awarding custody. The case law needs to be carefully reviewed to determine what the courts consider moral depravity of sufficient seriousness to otherwise deprive a parent of custody.

The Child’s Rights Act of 2003 makes provisions for protecting children during a divorce but child custody law remains a product of Nigeria’s marriage laws and it remains to be seen how the CRA will be read and enforced.

 

For more on Nigerian case law and decisions on custody here