Custody Disputes in Nigeria: Factors Considered and Types of Custody Orders
Given the current widespread discussion on social media concerning the child custody dispute between Davido and his child’s mother, with questions arising about the nature of child custody and the rightful custodian in this case, and the controversy surrounding Sophie’s mention of David’s deceased child, it is essential to provide a concise and comprehensive examination of custody law in Nigeria.
A mother retains custody of an illegitimate child (i.e., a child born out of wedlock) unless proven unfit by the father. Customary law often grants custody to the maternal grandfather. However, the Matrimonial Causes Act proffers a broader approach to ensuring the child’s best interests prevail over customary or common law principles.
Child custody is fundamentally determined by the principle of the child’s best interest. Both parents have equal rights and opportunities for child custody, as they are presumed entitled to custody without any pre-judgment, prioritizing the child’s best interest.
The term “custody” refers to “the care, control, and maintenance of a child which may be awarded by a court to one of the child’s parents.” Section 71(1) of the Matrimonial Causes Act stipulates: “In proceedings with respect to the custody, guardianship, welfare, advancement, or education of children of the marriage, the court shall regard the interests of those children as the paramount consideration, and subject thereto, the court may make such order in respect to those matters as it thinks proper.” The determination of custody post-divorce is influenced by various factors, with the child’s interest being paramount. Although the interest of the child is not explicitly defined, it depends on the unique circumstances of each case.
Several factors are considered in determining the child’s best interest, with no rigid rules. The court has discretionary power in granting custody and deciding the child’s best interest.
Section 71(1) of the Matrimonial Causes Act confers wide discretion on the court in custody matters, allowing it to make orders regarding custody, guardianship, welfare, maintenance, advancement, or education of the child as deemed fit.
To determine what is in the best interests of a child for a custody order, the court evaluates the following factors:
1. Age and Sex of the Child
While a child’s tender age does not automatically mean custody will be granted to the mother, the court often does so if it aligns with the child’s best interest. No rigid rule dictates this, and each case is assessed on its own merits. Traditionally, it is believed girls should be with their mothers and boys with their fathers, though this is not a legally binding rule and depends on individual circumstances.
2. The Wishes of the Child
The court may privately interview a child capable of expressing their wishes during custody proceedings. However, the child’s wishes, often gathered from welfare reports, are treated with caution due to potential influences.
3. Education and Religion
The court evaluates the advantages and disadvantages of educational and religious arrangements, ensuring decisions reflect the child’s best interest.
4. Conduct of the Parties
While the conduct of the parties is considered, custody is not denied based solely on behavior contributing to marital breakdown. The court’s discretion should not serve as punishment or reward.
5. Adequacy of Arrangements for the Child
A party seeking custody must present proposed arrangements for the child’s accommodation, welfare, education, and upbringing. Material wealth alone does not determine the child’s best interest, but better financial positions for providing good accommodation may be decisive.
6. Medical and Psychological Factors
Changing custody after a significant period with one parent must be handled cautiously to avoid psychological harm to the child.
7. Nationality of Parent
The court does not discriminate between Nigerian and non-Nigerian parents in custody awards; the child’s welfare remains paramount.
Types of Custody Orders the Court May Issue
The court has the discretion to issue various custody orders, with the child’s welfare and best interests being the paramount consideration. The court’s primary objective is to ensure the child’s physical, emotional, and psychological well-being.
1. Divided Custody
The child resides with each parent for part of the year, with reciprocal visitation rights. Each parent exercises complete control during their custodial period.
2. Split Custody
Custody is granted to one parent, and care and control to the other, allowing the custodial parent to make major decisions while the other handles daily upbringing. Modern approaches often vest joint custody with both parents.
3. Joint Custody
Both parents share responsibility and authority, participating in physical sharing and decisions affecting the child’s life. Joint custody does not imply equal time sharing but is based on the child’s age, parents’ availability, and other factors. Effective cooperation between parents is essential for this arrangement.
4. Temporary Custody
Temporary custody is granted pending the outcome of separation or divorce proceedings, with applications possibly made ex-parte in urgent cases.
5. Third-Party Custody
The court may place the child in the custody of a third party if neither parent is deemed fit or interested in the child’s welfare.
Conclusion
In custody determinations, the child’s paramount interest is central. The child’s welfare encompasses not only material provisions but also psychological development and overall happiness.
