DEFINITION OF CUSTODY
'Custody’ in general is defined as thee care and control of a thing or person for inspection preservation or security. The Black’s Law Dictionary, 9th Edition defines custody as :
“…the authority to make significant decisions on a child’s behalf including decisions about education, religious training and health care"
In the same vein, the custody of a child has been defined in Nwosu V Nwosu (2012) 8 NWLR (Pt.1301) 1pg 32 as:
“…the care, control and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision making authority) and physical custody (care giving authority), and an award of custody usually grants both rights.”
The Court of Appeal also defined custody in the case of Otti v. Otti, (1992) 2 NWLR (Pt. 252) p. 210, as:
"Essentially concerning control, preservation and care of the child's person, physically, mentally; it also includes responsibility for a child in regard to his needs, food, clothing, instruction and the like..."
Basically, custody of a child is where the care, control and maintenance of a child is awarded by a court to a relative usually one of the parents in a divorce or separation proceeding or to a responsible adult. It could be legal custody (decision making authority) or physical custody (care giving authority). Sometimes the court grants joint custody to parents which is an arrangement by which both parents share the responsibility for and authority over the child at all times. It is also called ‘shared custody'.
In discussing the relevance of determination of custody of a child, Justice Nnaemaka Agu J.C.A in the case of Williams Vs Williams (1981) 1 Q.L.R.N. at page 122 at part 127 submitted as follows:
“I take the view that custody of a child essentially concerns not only control of the child but also carries with it the necessary implication of preservation and care of the child’s person, physically, mentally and morally”.
These definitions clearly state that custody of a child is beyond physically having control of a child but extends to authority to make decisions for the wellbeing of the child in all aspects.
WHO IS A CHILD?
The child is a person who is considered incapable of taking absolute responsibility for their own lives until the attainment of the age of majority. In this regards, the Child's Right Act (2003) defines a child as any person under the age of 18. Thus, until the attainment of or above the age of 18 years, any person who is below the age of 18 years is considered a child.
A child is not a chattel to be owned but a person who is legally recognized from birth having rights and can make claims.
NATURE OF THE RUGHT OF CUSTODY
When a marriage has produced children, both parents have equal responsibilities and rights over their children, including the right to raise, influence and make decisions for and on behalf of their children. (Nwosu v. Nwosu (2012) 8 NWLR).
When a marriage is dissolved, there is a need for the custody of the children to be decided in order to determine if one or both parents will continue to exercise this right and the extent to which the right can be exercised. It is important to note that custody of a child/children can also be gotten without dissolution of a marriage, as long as it is in the best interest of the child/children.
Custody matters arising from any statutory marriage can be brought before a High Court or Magistrate Court. Where the marriage is a Customary Marriage or an Islamic marriage, a custody matter can be brought before a Customary Court or Sharia Court, respectively.
TYPES OF CUSTODY
Having established that the interest of the child is the paramount consideration, it is important to identify the different types of custody which might be granted by the courts. These are namely: Divided Custody; Split Custody; Joint Custody; Temporary Custody and Third-Party Custody.
1. Divided Custody
This occurs where the court directs that a child lives with each parent for different parts of the year with reciprocal visitation privileges. When this occurs, the child is expected to be in the custody of one of the parents, who will in turn exercise complete control over the child.
2. Split Custody
This occurs when the court grants custody to one parent while care and control of the child is granted to the other, in which case the parent vested with custody has the power to control the major decisions of the child's future while the other parent controls the day-to-day physical upbringing of the child.
3. Joint Custody
This usually happens when the court directs both parents to share responsibility and authority with respect to the child. The effect of this is that both parents are involved in the physical sharing of custodial rights over the child as well as participating in decisions affecting the child's life such as education, medical problems etc. This is slightly different from split custody.
It should be noted that joint custody does not necessarily mean equal or fifty-fifty sharing of time since each case depends on the child's age, parent's availability and desires among other factors. Before an order of joint custody is made, the court must ensure that the parents would co-operate with each other, otherwise, such an order would be ineffectual.
4. Temporary Custody
This occurs where custody of a child is awarded to a parent temporarily pending the outcome of a separation or divorce proceedings. This power can be exercised where during a matrimonial proceeding, a dispute with respect to the custody, guardianship, welfare, maintenance, advancement, or education of the children of the marriage arises after the proceedings for the principal relief has been instituted.
5. Third-Party Custody
This usually happens where the court considers it desirable to do so. It may place the child under the custody of a third party- a person other than a party to the marriage, either permanently or as an interim measure if it considers this to be in the child's interest pursuant to the provisions of section 71(3) of the Matrimonial Causes Act.
This order will be made if it is either obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the child or where neither of the parties to the marriage has applied for the custody or where in the opinion of the court, neither of the parties to the marriage is a fit and proper person to have the custody of the child.
However, it should be noted that it is usually in a situation where there is nothing before the court to disqualify any of the parties to the custody of the child that joint custody will be granted. In Williams v Williams, it was held by Obaseki JSC:
"The position therefore is that there is no evidence before the Court to disqualify either parent from being awarded the custody of Kafialat Abimbola their daughter.... In the circumstances, an order for joint custody with care and control to the appellant and responsibility for education to the respondent will be most appropriate. It will meet the justice of the case and take care of the welfare of the child."
PRINCIPLES AND CONSIDERATIONS WHICH GUIDE THE AWARD OF CUSTODY
In matters not based on matrimonial causes, The Child’s Right Act empowers the Family Court to make orders for child custody. This can be seen in Section 69 of the Child Rights Act, which provides as follows:
69(1) The Court may:
(a) On the application of the father or mother of a child make such other as it may deem fit with respect to the custody of the chlild and the right of access to the child of either parent, having regard to
(i) The welfare of the child and the conduct of the parent, and
(ii) The wishes of the mother and father of the child”
The above quoted provisions clearly give courts with jurisdiction and power to make orders granting child custody.
Furthermore, in exercising the power of the court to grant the award of custody, Section 7(1) Matrimonial Causes Act provides:. With respect to custody, guardianship, advancement or education of children of the marriage, the court shall regard the interest of those children n1consideration and subject thereto the court may make such order in respect to those matters as it thinks proper. Who gets the custody of a child after divorce depends on a number of factors."
In such respect, Section 1 of the Child Rights Act 2003 states thus:
"In every action concerning a child, whether undertaken by an individual, public or private body, institutions or -service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration".
In such light, the interest of a child is a paramount consideration in the issue of child custody.
There is no stated rule of what constitutes interest of a child. It will depend on the circumstances of each case. Karibi-Whyte JSC in the case of Williams v. Williams (1963) UKHL 6 observed as follows:
"The determination of the welfare of a child is a composite of many factors. Consideration such as the emotional attachment to a particular parent, mother or father; the inadequacy of the facilities, such as educational, religious, or opportunities for proper upbringing are matters which may affect determination of who should have custody."
ODUSOTE V ODUSOTE (2012) 3 NWLR Part 1288 page 478 at 487 ratio 15 the court stated that
"Interest of the child would include the welfare, education, security and overall wellbeing and development."
Having established that it is a trite law that the welfare and interest of a child is the primary consideration while deciding the grant of the award of custody, it is noteworthy therefore, that this principle is dependent on the circumstances of each case and is a composite of several factors which narrows down to the wellbeing of the child.
Other factors which the court might consider are:
i. Age and Sex of the Child
The fact that a child is of a tender age does not necessarily mean that his/her custody will always be granted to the mother but the court will readily do so if it is in the interest of the child.
A father or male person seeking custody must be aware that there is no settled rule in law that insofar the child is of tender age of or female gender that the child must be left in the custody of the mother. The law will not support the mother based on those considerations.This position was set out in Alabi v Alabi (Supra) at 350-351 paragraphs H- D,per Agube JCA: “The court below agreed with the submission of the appellants counsel that there is no settled rule that a child of tender age should remain in the custody of the mother See Otti v Ottu(1992) 7 NWLR (Pt.252) 187 at 210 where the Court of Appeal, Jos Decision quoted with approval the dictum of Nnamani JSC that:
“In according the child’s interest paramount, there are a number of well settled considerations. For Instance there is no settled rule that a child of tender years should remain in the custody of the mother. (See Re. B (AnInfant) (1962) All ER 872) although obviously the care and supervision that a mother who is not out of work can give to little children is an important factor.
In W.V.N and C (1968) 3 All ER P 408, the Court of England held that it was right for the court to be guided by the general principle that a bot of eight years was on the whole, other things being equal was better off with his
ii. The Wishes of the Child
In some cases, the judge in a custody proceeding may interview the affected child privately particularly where the child has attained an age when he/she is capable of expressing his/her wishes.
However, the child’s view may emerge from welfare reports and will be taken into account. The court usually treats the wishes of the child with caution as this may be coloured either by his age or a parent’s influence.
iii. Education and Religion
The court usually gives consideration to the advantages and disadvantages of any arrangement for the education and religion of the child. Matters of religion affect the welfare of the child and courts are anxious to ensure that whatever decision is reached in this respect reflects the child’s best interest.
In Williams v Williams (1987) 2 NWLR (Part 54) 66 page74 paragraph G, It was held by Obaseki JSC that:
“It seems to me that order for custody must have in view the opportunity of sound education as well as physical and mental welfare. A parent who will deny these to his or her child is not worthy of an order for custody from the court.”
In essence, a party seeking custody may be able to obtain custody if he/she can prove that he/she can provide sound education (note: not just education),and provide for the physical and mental well being of the child. He must also to an extent prove that the other party will/may deny the child these three factors.
iv. Conduct of the Parties
The conduct of the parties to the child is a matter to be taken into account in determining what the best interest of the child is. However, a parent may not be deprived of custody merely because of his or her conduct which might have contributed to the breakdown of the marriage. The court’s discretion must not be exercised as a punishment for one party or a reward for the other party.
It is a trite principle of law that the conduct of a party claiming for custody is a major consideration. The Supreme Court lent their ultimately binding voice to this position in the case of Williams v Williams (supra) page75 paragraph G, It was held by Obaseki JSC that:
“The Welfare of an 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”
In Alabi v Alabi (supra), the Court of Appeal also upheld this groundbreaking principle. It was held by Agube JCA that at page 347paragraphs E-F:
“Although misconduct on the part of the party to the suit is not the paramount consideration, where parties have made equally laudable arrangement for the welfare of the child and its upbringing, misconduct may tilt the balance in favour of the other party.
Also where there are persistent acts of misconduct and moral depravity by one this party may be evidence of unsuitability of that party to be entrusted with the custody of the child.
In Lafun v Lafun (1967) NMLR 401, where it was held that owing to the moral degeneracy of the respondent(mother) it would not be in the best interest of the child for the respondent to have access to the child who was in her formative years and could easily be negatively influenced.
v. Adequacy of Arrangement for the Child
Where a party seeks the custody of a child of the marriage, he/she is required to set out the proposed arrangement for accommodation, welfare, education, upbringing and other arrangements of the child. Unless the party sets out these facts, the court may be reluctant to consider the question of custody in favour of such party.
It should be emphasized that the mere fact that a spouse has material wealth cannot per se be regarded as being in the best interest of a child of the marriage. But the fact that one spouse is in a much better financial position to bring up the child and to provide him or her better accommodation may be decisive. Also, the party who is in a better position to offer the child good accommodation may be preferred.
vi. Medical and Psychological Factors
If custody of a child has been with a parent for a considerable period of time, care must be exercised in the change of the custody. This may result in psychological harm to the child. In such a case, the court may order that the custody remains with the parent already taking care of the child.
vii. Nationality of Parent
The courts would not discriminate between a Nigerian or Non-Nigerian parent in an award of a child custody. The primary consideration is the welfare of the child.
VIII. Equality of Parents
Equality of parents presupposes that either parent may be entitled to custody of the child. The court is not entitled to prejudge which party will have custody before considering the interest of the child.
In furtherance to the above, the Court of Appeal went further in Alabi v Alabi(2007) 9 NWLR (Part 1039) 297 at pages 347-348 paragraphs G-A, it was held by Agube JCA that the court stated that the following considerations inter alia are key in determining who should have custody:
“Thus certain relevant criteria must be considered in the determination of the welfare of the child as in this case and they include:
The degree of familiarity of the child with each of the parents (parties)
The amount of affection by the child for each of the parent and vice versa
The respective incomes of the parties
Education of the Child"
The fact that one of the parties now lives with a third party as either man or woman and the fact that the case of children of tender ages custody should normally be awarded to the mother unless other considerations make it undesirable etc.
DUTIES OF A WELFARE OFFICER
In dealing with matters of custody, guardianship, welfare, advancement or education of the children of the marriage, the court may adjourn the proceedings until a report has been obtained from a Welfare Officer. Any such report may thereafter be received in evidence as provided in Section 71 (2) of the MCA, 2004.
A Welfare Officer is defined in Section 114(1) of the MCA as: "a person authorised by the Attorney General of the Federation by instrument in writing to perform duties as a welfare officer for the purposes of this Act, being (a) a person who is permanently or temporarily employed in the public service of the Federation, or (b) a person who is permanently or temporarily employed in the public service of a state and whose services have been made available for the purposes of this Act in pursuance of the arrangement between the Federation and the State, or (c) a person nominated by an organization undertaking child welfare activities." on such matters that are relevant to the proceedings.
The report of the welfare officer is expected to cover all aspects of the life and welfare of the child in question. The relationship of the child with the parents and other arrangements for the welfare and education of the child should also be included in the report. This will assist the court in making its order.
CUSTODY OF CHILDREN BORN OUT OF WEDLOCK
Where a child is born out of wedlock, under customary law, the father of the girl takes custody of the child or in the absence of the girl’s father, the mother takes custody. However under statutory law, S 69 MCA makes reference to children of the marriage and they include:
—Child adopted since the marriage by both husband and wife or either with due consent
—Child born before the marriage by husband and wife whether legitimated by the marriage or not
—Child born by either the husband or wife before the marriage (including illegitimate or adopted child by either husband or wife) if at relevant time, the child was a member of the household of the husband or wife.
This means that children born out of wedlock under statutory law, will not have the customary law position based on section 69 MCA. The interest of the child will be the Court’s consideration in custody of the child.
DISCRETIONARY POWERS OF THE COURT IN CUSTODY CASES
From the provision of Section 71(1) of the Matrimonial Causes Act, it will be appreciated that the Court has a wide discretion in custody matters. The Court has the discretion to make such order in respect of custody, guardianship, welfare, maintenance, advancement or education of the child as it thinks fit.
ENFORCEMENT OF AN ORDER
An order for custody or access to children may be enforced by attachment, committal for contempt of court, or the issue of a writ of sequestration.
CUSTODY OF CHILD UNDER CUSTOMARY LAW
Nigeria is a country with multi ethnic groups and under some customs, the custody of a child is solely the Father and this is because of the patrilineal nature of most communities. This was further affirmed by E.I Nwogu in his book on Family Law in Nigeria 1979 where he stated
“Under most Customary law systems in Nigeria, the belief is that the father has absolute right to the custody of his legitimate or legitimated child. Upon his death the male head of the father’s family is vested with the right although the day to day care of the children may be the responsibility of the mother. However, customary law also recognizes that the father’s absolute right will not be enforced where it is not solely in favour of the interest and welfare of the Child. For instance, where the child is of tender age, customary law requires that it should be left under the care of the mother. In such a case the father’s right is merely in abeyance, and may be exercised when the child could safely be separated from the mother”.
This is the position under most customary communities but this position has waned down completely because of the Court’s decision in FEBISOLA OKWUEZE Vs PAUL OKWUEZE(1989) 3 NWLR Part 109 Page 329 Uwais JSC which stated although the superiority of a father is recognized under customary law; such will not be exercised where it will be detrimental to the best interest and welfare of the child.
This was further affirmed in the case of WILLIAMS V WILLIAMS (1981) 1 Q.L.R.N. which states that the law allows same rights and authority given to the father to the mother as well. The right and authority of father and mother shall be equal, exercised by either without the other.
Aside the best interest of the child, other considerations such as the conduct of both parties are also looked into by the court before granting custody. In OBAJIMI V OBAJIMI at page 117
“ ..the welfare of the minor, although the first and paramount consideration, is not the Sole consideration, the conduct of the parties is a matter to be taken into consideration”
Please note that for a marriage to be said to be regulated under customary law, the necessary customary rites must have been done including the payment of bride price. The Customary Court cannot assume jurisdiction where this is in question.
CONCLUSION
It is noteworthy that in the award of custody of a child by a court, the paramount interest of the child is the main key. However, it must be understood that the welfare of a child is not only the material provisions in the house, good clothes, food, air conditioners, television, but it is more of the happiness of the child and his or her psychological development.
