A. Introduction
This edition of Akintunde Esan's Legal Illumination is written with the plight of parents battling with the issue of child custody in mind. Who will the Court grant the custody a child or the children after going through the pains and trauma of a divorce or a separation.
Thus, the focus of this legal illumination is the factors the Court will consider in awarding custody to one of the parents whether married or unmarried; or married but separated; and whether the child custody is sought for with or without a divorce.
B. Who is a Child
The African Charter on the Rights and Welfare of the Child defined a child as “every human being below the age of eighteen years”.The United Nation’s Convention on the Rights of the Child of 1989 defines a child as a person below the age of eighteen years except in the law applicable to the child, the age of majority is attained earlier. Nigeria ratified the CRC in 1991 and domesticated it in 2003.
The Constitution of the Federal Republic of Nigeria does not define who a child is. However , the Child Rights Act which has been domesticated in some States defines a child as “a person under the age of eighteen years” and defines the “Age of Maturity” as the age at which a person attains the age of eighteen years.
C. The Paramount Consideration
The paramount consideration in award of child custody is the interest of the children.
D. The General Considerations
(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father.
(2) In regard to the custody or upbringing of a minor, a mother shall have the same rights and authority as the law allows to a father and the rights and authority of mother and father shall be equal and exercisable by either without the other.
(3) Nor is there necessarily any rule that mother has a paramount claim as against other relations, at any rate where the father is alive and support the application of those relations.
(4) The welfare of the infant although the first and paramount consideration is not the sole consideration and the conduct of the parties is a matter to be taken into account.
(5) The adultery of a party is not necessarily reason for depriving that party of custody unless the circumstances of the adultery make it desirable.
(6) All the circumstances must be considered.
(7) The fact and advantages of brotherhood and sisterhood must also be considered when there is more than one child of the family and it is proposed to give custody of one child to one person and another to a different person.
8) There is settled rule that a child of tender years should remain in the custody of the mother, but obviously the care and supervision that a mother who is not out at work can give to little children is an important factor.
(9) In dealing with the questions of custody or access the court will have regard to the particular circumstances of each case always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of a spouse for misconduct.
(10) The wishes of an unimpeachable parent stand first.
11) Where both parents appear to be equal to the task of maintaining the children and are ready to give affection and proper guidance to the children. It was held that the interest of the male child who is 14 years old will best be served by granting custody to the father who will naturally be able to provide strong guidance for the teenage boy.
12) Regarding the female child, where both parents are eminently qualified, able and anxious to give affection and proper guidance to their child for whom they are responsible; they are likely to co-operate and swallow their vanity in the interest of the welfare of the child because of the affection they have for the child. There can be no real objection in this circumstance for an order for joint custody.
13) In general, under most systems of customary law in Nigeria the father of a legitimate child or legitimated child has absolute right to custody of the child. However customary law recognises that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child.
Application for Child Custody without filing for Divorce
Apart from seeking for child custody in a divorce proceedings in Nigeria, application for child custody can also be made to the Court with the requisite jurisdiction without filing for divorce.
Application for child custody without filing for divorce is legally required to be made to one of the following:
(a) The High Court; or
(b) The Magistrate Court ; or
(c) The Customary Court
The appropriate Court to apply to depends on whether the parents are married or unmarried and the nature as well as the status of the marriage, if they are married.
Conclusion
Where two elephants battle, the innocent grasses on the battle field are unconsciously destroyed. As you fight the battle for the custody of your child or childern think of their future. In case you need more legal illumination on the custody of your child or children in Nigeria, you may contact Akintunde Esan, the writer this legal illumination or Ase Olodumare Chambers.
Authorities:
- Williams v. Williams (1987) NWLR(Pt. 54) 66
- Uzochukwu v. Uzochukwu (2014)LPELR-24139(CA)
- Re A, an infant (1959) C.L.. 950(1959) Times March 25th C.A.
- Re L (infants) (1962) 3 All ER.
- Wakeham v. Wakeham (1954) 1 AllER 434 CA at 435.
- Re B. (an infant) (1962) 2 All ER872
- W v. Wand C (1968) 3 All ER 408
- Re O. (infants) (1971) Ch 748(1971) 2 All ER 744 CA at 746, 752.
- Re Thain, Thain v. Taylor (1926)Ch 676
- Mckee v. Mckee (1951) AC 352,366;(1951) 1 All ER. 942, 949 PC
- Okwueze v. Okwueze (1989) NWLR(Pt.109) 321
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