1.0 INTRODUCTION
Child custody is one of the major issues under divorce proceedings, significantly impacting parties involved. The court may make an order granting custody to either party or to another person who is not the husband and wife of the marriage. Before divorce proceedings commence, parties are free to agree on modalities as to custody and maintenance of children in the marriage. And upon commencement of the divorce proceedings, their unanimous position will be adopted by the court. However, where parties are not in agreement, the court will, upon hearing arguments by both parties, give its decision as to which of the parties will get custody of the children or whether custody will be granted to another person. The court will also give orders as to maintenance, welfare, advancement or education of the children. In making these orders, the court considers several factors, topmost of which is the interest of the child.
2.0 MEANING OF CHILD CUSTODY
Child custody was defined in the case, Otti v Otti to essentially mean “control, and the preservation and care of the child’s person physically, mentally and morally; responsibility for a child in regards to his needs, food, clothing, instruction and the like.”
Black’s Law Dictionary also defines custody of children as “The care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding”.
Custody involves legal custody and physical custody. Legal custody refers to which party/person gets the decision-making authority over the child, that is, authority to make significant decisions regarding the child. On the other hand, physical custody refers to which party/person gets the care-giving authority over the child, that is, authority for physical care and control. Usually, an order of custody grants both rights.
3.0 LEGAL FRAMEWORK FOR THE GRANT OF CHILD CUSTODY
In custody proceedings, both parents have equal rights over the child, and such rights and authority shall be exercisable by either party. Thus, upon submission of their respective arguments, the court will consider several factors to determine which party gets custody of the child.
3.1 Factors determining Child Custody
The first consideration of the court is the interest of the child. The Matrimonial Causes Act provides that in proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of the children as the paramount consideration. It has also been decided by a plethora of cases that the interest of the child shall be the condition precedent when deciding on custody. In deciding the case, Odusote v Odusote, which was instituted by the wife for dissolution of marriage and custody of the children of the marriage, all of whom were of tender years between ages 11 and 13, the court ruled that in custody proceedings, the interest of the children in question is the topmost consideration in the determination of who among the parents should be granted custody.
On what constitutes “interests of the children” in custody issues, the court stated that it would include their welfare, education, security and overall well-being and development. In another case, Nanna v Nanna, the court held that in awarding custody of a child, it will consider the care of the child’s person, morally, physically, and mentally; and that the welfare and interest of the child must be accorded paramountcy.
Custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences. Therefore, custody may be granted to the guilty party where the court is of the opinion that the party is in the better position to provide for the child especially where the other party has no independent means of their own.
In determining the welfare of a child, the court, as in Alabi v. Alabi, may avert it mind to several factors such as the degree of familiarity of the child with each of the parents (parties); the amount of affection by the child for each of the parents 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 in the case of children of tender ages, custody should normally be awarded to the mother unless other considerations make it undesirable, etc.
Another consideration of the court is misconduct on the part of one of the parties. The court stated in Alabi v Alabi that although misconduct on the part of a party to the suit is not of 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. The court further stated that where there are persistent acts of misconduct and moral depravity by one of the parties, this may be evidence of unsuitability of that party to be entrusted with the custody of the child.
Furthermore, the court may also consider the sex and tender age of the child in granting custody. Thus, the court in Alabi v Alabi stated that children who are female and in their growing or formative years are on the whole, other things being equal, better off with the mother. The court also stated that if the parents are separated and the child is of tender age, it is presumed that the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear the contrary is the situation, e.g. immorality of the mother, infectious diseases in the mother, insanity and cruelty to the child.
3.2 Grant of Custody under Customary Law Marriage and Islamic Marriage
In deciding custody under customary law marriage and Islamic marriage, the courts have given credence to the best interest of the child as the paramount factor. Thus, in Okwueze v Okwueze, the court acknowledged that under most systems of customary law in Nigeria, the father of a legitimate child has absolute right to the custody of the child, however, customary law recognizes that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child. Also, in Bilyamin Bishir v. Suwaiba Mohammad, the Sharia Court of Appeal held that the first thing to be considered in child custody matters is the child’s best interest, health, proper training, and the child’s education.
3.3 Grant of Custody to Other Persons
By the provision of section 71(3) of the Matrimonial Causes Act, a court can grant custody of a child to a person who is not a party to the marriage because the interest of the child is the paramount concern of the court in a dispute over custody of a child. So, if the interest of the child will be best served by granting custody to another person, the court will so direct as in Okobi v. Okobi.
3.4 Courts with Jurisdiction
The High Court has jurisdiction to hear and determine matrimonial causes instituted under the Matrimonial Causes Act, such as dissolution of marriage (divorce), judicial separation, etc. The High Court also has jurisdiction to determine child custody under divorce proceedings.
Additionally, jurisdiction has been conferred on the Magistrates’ Courts via the ‘Family Court’ channel, to determine custody issues not tied to divorce proceedings or other matrimonial causes, as Magistrates’ Courts do not have jurisdiction over the matrimonial causes listed under the Matrimonial Causes Act.
4.0 CONCLUSION
The welfare of children is of upmost importance to the State. Legislations like the Child’s Rights Act 2003 and other provisions for offences against infants as enshrined in the various Criminal Codes are a testament to this. It therefore behoves on the courts to consider the welfare of the child and other defining factors when granting custody to either party of the marriage or to a third person.