Introduction,
Child custody battle is a draining experience all over the world and Nigeria is no exception. As you may have guessed, the welfare of the child or children in question, is the main interest of the Court. Establishing that the interest and welfare of the child can and will be protected by the parent or guardian obtaining custody would increase the chances of a win in this battle.
In Nwosu v. Nwosu (2012) 8 NWLR (1301) p32, child custody is defined as thus:
“The care, control and maintenance of a child awarded by a Court to a responsible adult”.
The above citation goes on to state that child custody involves caregiving and decision-making authority awarded by the Court over the child. Meaning, it is an authority to make important decisions on behalf of the child including matters involving healthcare, religion and education.
As a Parent or Guardian seeking child custody in Nigeria, you must know the rules, procedures and guidelines governing child custody in Nigeria.
Here’s a breakdown of the key aspects:
As we mentioned before, when Nigerian courts make decisions about child custody, their primary concern is always the best interest of the child. This principle is enshrined in key laws such as the Child Rights Act (CRA) 2003 (Section 1) and the Matrimonial Causes Act Cap M7 LFN 2004 (Section 71(1)). These laws also define a child as anyone under 18 years old.
Legal Framework:
- Child Rights Act (CRA) 2003: This national law, domesticated by most Nigerian states, emphasizes the child’s best interest as the primary consideration in all actions concerning a child.
- Matrimonial Causes Act Cap M7 LFN 2004: This act, primarily governing divorce proceedings, also stresses the child’s interests as paramount in custody cases arising from marriage dissolution.
- Customary and Religious Laws: These can also influence custody arrangements, especially in areas where Islamic or traditional law is prevalent. However, the overarching principle of the child’s best interest (as established by statutory law and court precedents) generally overrides customary practices that might give absolute custody rights to one parent (e.g., the father in patrilineal societies).
Factors Courts Consider for Child Custody:
Courts evaluate several factors to determine the child’s best interest, including:
- Child’s Familiarity and Affection: The bond and relationship the child has with each parent.
- Parental Income: Each parent’s financial capacity to provide for the child.
- Educational Needs: The child’s educational arrangements and future needs.
- Living Arrangements: The stability and suitability of each parent’s living situation, including if they live with third parties.
- Tender Age Consideration: For very young children, custody is often awarded to the mother, unless it’s deemed undesirable for the child’s welfare.
- Sex and Age of the Child: These can also play a role in decisions.
- Emotional Stability & Moral Standing: The parent’s ability to provide a secure and morally sound environment.
- Parental Responsibility and Availability: A parent’s consistent involvement in the child’s life, proximity to school and community, and work schedule’s impact on their availability.
- History of Child Care: Which parent has been the primary caregiver.
- Child’s Opinion: If the child is old enough (typically 10-12 years or older), their preference may be considered, though the court ultimately ensures it aligns with their best interest.
Types of Child Custody:
- Physical Custody: Where the child lives.
- Legal Custody: Decision-making authority regarding the child’s welfare (education, healthcare).
- Sole Custody: One parent has both physical and legal custody.
- Joint Custody: Both parents share responsibilities and decision-making.
- Split Custody: (Rare) Each parent gets custody of one or more children when there’s more than one child.
- Divided Custody: Child lives with each parent separately on an agreed schedule.
- Temporary Custody: Granted pending the outcome of matrimonial proceedings.
- Third-Party Custody: Granted to a non-parent in exceptional circumstances where neither parent is deemed fit or interested.
Requirements to Obtain Custody:
Parents seeking custody must demonstrate:
- Proof that granting them custody is in the child’s best interest.
- Their capacity for parental responsibility and availability.
- Their history of child care.
Application Process for child custody:
- Petition Filing: File a petition for child custody with the appropriate court (High Court, Magistrate Court, or Sharia Court).
- Document Preparation: Gather supporting documents for the petition like affidavits, the child’s birth certificate, financial documents, and character references.
- Legal Action: Both parents present their arguments and evidence. The court may involve an impartial social worker.
Factors Against Custody:
Custody may be denied if there’s a history or evidence of:
- Abuse or neglect (verbal, emotional, physical).
- Criminal activity or substance misuse.
- Lack of cooperation with the other parent regarding the child’s relationship.
Custody in Divorce Proceedings:
Custody is typically determined during divorce, with the Court prioritizing the child’s welfare. In some cases, interim custody may become permanent.
Custody Order Modification and Enforcement:
Custody orders are not final and can be modified if there’s a significant change in circumstances impacting the child’s welfare. Orders are enforceable, and legal action can be taken if a parent disobeys them.
Parental Collaboration and Joint Custody:
Nigerian courts are increasingly open to joint custody where both parents are suitable and can cooperate for the child’s well-being.
Custody of Children Born Out of Wedlock:
Under customary law, the mother’s family often takes custody. However, under statutory law (Matrimonial Causes Act), the “children of the marriage” definition is broad and can include children born before the marriage or adopted, emphasizing the child’s interest as the primary consideration.
Difference between Child custody and Guardianship:
The major difference between child custody and guardianship is that the former is awarded to a Parent of the child, the later is awarded to a third Party. Guardianship usually happens where there is no parent to take custody such in cases where the parents are deceased, incarcerated and so on.
CONCLUSION
In essence, while different laws and traditions exist, Nigerian courts consistently prioritize the child’s overall well-being, including their emotional, educational, financial, and moral needs, above all other considerations in custody disputes. Whichever parent or guardian can establish these may be given custody of the child.
