FAMILY LAW 2.3 CUSTODY (ANCILLARY RELIEF 3)
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-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.
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 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.