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CUSTODY.
A divorce or separation has far-reaching effects on the parties and children of the
marriage. The issue of custody comes into play where a child (or children) was
begotten from a union which now wants to divide. The question is; who should keep
the child?
Custody is the care, control and maintenance of a child which may be
(discretionarily) awarded by a competent court to one of the parents as in a divorce
or separation- Black’s Law Dictionary. Custody essentially concerns the control,
preservation and care of a child’s person-Otti v. Otti.
In Oladetohun V Oladetohun, the court held that due to the intricacies of such
determination, the court can be assisted by a welfare officer as provided under
Section 71(2).
The court is advised to exercise its discretion regarding the best interest of the child
as paramount- Section 71(1) Matrimonial Causes Act. To ensure his/her proper
upbringing. In Williams v. Williams, this paramount consideration was also
recognised in this case. Justice Karibi Whyte in this case also noted that a composite
of factors (like preferred parent, available facilities, education, religion, and so on)
would be taken into account in arriving at the best interest of the child which is
paramount but not the only consideration. See also Re L Infants.
The Following shall be taken into consideration:
:: Which parent has Adequate Arrangements for the Child? In Eziashi V Eziashi
the court noted that a financially stable parent who can provide good accommodation
for the child is preferable. In Dawodu v. Dawodu, the court refused to grant custody
of a child to a mother who had no home of her own. This is not a final consideration
as the court pointed out in Odogwu V Odogwu that psychological development
rather than material luxury should be the decisive factor. A similar stance was taken
in the English case of Re McGrath
:: The Age and Sex of the child: In Oladetohun V Oladetohun the court noted that
younger children should remain with their mother who is in the best position to
provide the much needed natal care and nurturing. In this case, the court (ignored the
allegations that the mother was bad and practiced juju) granted custody of the 3 years old child to the
mother. Holding that it was in the best interest of the child . Also, the courts have shown a
preference to grant custody of male children to the fathers (as was done in Oyelowo
V Oyelowo) and female children to the mothers (as was noted in W V W).
:: The wishes of the child. The court may interview the child in chambers or get a
report from the welfare officer. In Re S (an Infant) the courts were advised to
exercise caution as the wishes of the child may be coloured by parental bias. In-
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Odogwu V Odogwu the court noted that such bias may be manifest where the child
prefers the richer parent.
:: Education of the child: is in his best interest if it is in the proper environment-Per
Obaseki JSC in Williams V Williams, where the court disregarded the claim by the
parent that he intended to send the child overseas to study. Oputa JSC in this case
stated that “a Nigerian should be trained to live in Nigeria and not become an
expatriate in his own country”. In my opinion, this position just appears to be a mere
fad of patriotism.
:: The religion of the child and the parent shall also be taken into consideration and
their compatibility appraised.
:: Medical and psychological factors: In H V H and C and also in S (BD) V S(BJ)
the courts noted that it may be psychologically upsetting to change the environment
or parent whom a child has been accustomed to.
:: Conduct of the parties: Ordinarily not a factor (Williams v. Williams where adultery
did not disentitle the parent from custody) Obaseki JSC held in Eziashi V Eziashi that a
custody order is not a penal order except where such conduct shows that the spouse is
not fit and proper to nurture the child. In Okafor v. Okafor, the court refused to
grant custody to a mother who had not seen her son for more than 6 years. In
Kolawole v. Kolawole, the court refused to grant custody to the mother who once
tried to kill her child. In Lafun v. Lafun the court refused to grant access, visitation
and custody to a mother holding that she was morally depraved. She had to wait till
he reached 14.
:: Equality of parents: Unlike at common-law where the husband was shown
preference, Section 71 of the MCA places parents on an equal pedestal. The court in
Williams v. Williams noted that equality should be the starting point though other
factors may tilt the scale in favour of one parent… all should be done in the best
interest of the child.
:: Nationality of parent is irrelevant: no discrimination at all. In Oloyede v.
Oloyede the court held that the Irish nationality of the mother does not justify the
award of custody to the father. The primary consideration is the welfare of the child.
:: Other factors: like closeness to one party- in Okafor V Okafor, the court took
notice of the fact that the child was too close to his father.
As such, the interest of the child relates to the physical, psychological, mental and
moral welfare of the child. In arriving at this, the should closely consider the factors
discussed above.
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After considering the above, the court may make any of the following custody
orders:
Sole custody: here care control and maintenance of a child is given to one of the
parties to the exclusion of the other.
Divided custody: switching between parents for a period of time with reciprocal
visitation rights-Lawson V Lawson.
Split custody: involves awarding legal custody to one parent and physical custody to
the other parent. The parent with physical custody controls the daily management of the child
while that with legal custody makes long-term decisions on/for the child. Split custody was
awarded in Abayomi v. Abayomi (legal to the father and physical to the mother).
Joint custody: granting custody to both parents (NOT necessarily fifty-fifty) where they
are willing and able to cooperate-Williams V Williams. In this case, the mother and
father were awarded joint legal custody, and then physical custody was granted to the
mother. They would consult one another before a decision is made. In the Western
countries, there is a joint custody called “bird’s nest custody” whereby both parents
are ordered to pack out of the matrimonial home while children remain in the
matrimonial home. The parents then take turns to exercise custody over the children.
i.e. The father moves into the matrimonial home for a month. Then leaves and the
mother moves in for one month… then leaves then the father moves in…
Third party custody: Section 71(3) provides that where both parents are unfit,
disinterested or unavailable, the court may grant custody to a third party in the best
interest of the child. In Nwuba v. Nwuba, custody of the children was granted to the
maternal grandmother (Rosemary Inyama). But visitation access may be given to the
parents for the sake (or as a right) of the child-M V M.
Temporary custody: pending the determination of the litigation-Order XVI
Matrimonial Proceedings Rules 21-23. The order may be made exparte or with
leave depending on the urgency.
UNDER COMMON-LAW, the father of a child born in lawful statutory marriage has
the right to custody of his legitimate children until they attain majority-Thomasset V
Thomasset. The Custody of Infants Act 1873, intervened and enabled the mother to
have a chance in custody of the children.
CUSTODY OF A CHILD BORN OUTSIDE WEDLOCK.
Under common-law, the custody remains with the mother-Okoli V Okoli.
Under customary law (in most customs) the maternal grand-father has custody and in
some customs, notwithstanding the fact that the child has been legitimated by the
father. Under Statute, if the child falls within the ambit of Section 69 of the
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Matrimonial Causes Act, Section 71 shall apply, and the best interest of the child
would be the paramount consideration.
Section 88, of the Matrimonial Causes Act, provides that a custody order can be
enforced. Part VIII provides for enforcement of court order. The means of
enforcement may include; attachment, committal for contempt of court (Section 93)
and the issuance of a writ of sequestration. See Head of Federal Military
Government V The Probation Officer and Ors.
As a general rule, neither the High Court nor the magistrate court has jurisdiction in
custody issues when they are not in connection with divorce proceedings-Omodion V
Fasoro.