CUSTODY OF CHILDREN OF THE MARRIAGE: AN APPRAISAL OF THE LAW AND JUDICIAL AUTHORITIES ON THE GRANT OF CUSTODY OF A CHILD IN MATRIMONIAL DISPUTES IN NIGERIA

 

Introduction

 

In matrimonial disputes, the custody of children of the marriage is usually of paramount importance to the parties. This article explores the position of the extant statute with regards to custody of children, the factors taken into consideration by the Court in granting custody of a child or children and the grant of joint custody.

 

Who is a Child?

 

Under the Child Right’s Act of 2003, a child is defined as a person under the age of eighteen (18) Years. Similarly, the African Charter on the Rights and Welfare of the Child defines a child as a human being below the age of eighteen years (18). Custody concerns control, preservation and care. Custody of a child connotes the responsibility for a child’s person, physically, mentally and morally. Custody of a child also extends to the provision of a child's needs, food, clothing, education, instructions etc.[1] In the grant of custody of children, only children below the age of 18 years are reckoned with. Once a person attains the age of 18, the grant of custody can no longer be an issue in the court of law save in a few exceptions i.e. mental disability.

 

The position of the law

 

Section 70 of the Matrimonial Causes Act states that concerning the custody, guardianship, welfare, advancement or education of children of a 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 of those properties as it thinks proper.

 

Simply put, when the issue of the grant of custody of a child arises in a matrimonial dispute, what the court considers is what is in the best interest of the children of that marriage? Accordingly, it is safe to say that the grant of custody is decided on the peculiar facts and circumstances placed before the Court in each, however, there are guiding factors that are considered by the court and we shall examine the same.

 

Factors Considered

 

In determining the paramount interest of the child’s interest, there several well-settled considerations made by the Court, these include:

i.                    The arrangements made by the parties for the welfare of the child: Parties to a matrimonial dispute where the custody of the child is being sought as an ancillary relief are mandated to set out arrangements for the custody of the child or children sought.[2]  This includes the care of the child’s person, morally, physically and mentally.[3] It also includes arrangements made for the child or children regarding accommodation, education, moral and spiritual upbringing. The Court in ascertaining the best interest of the child considers the arrangement set out by the parties in determining what will be most suitable for the child having consideration to other available evidence.

 

ii.                  The respective income and position in the life of the parents: The current income of the parents also influences the award of custody. The Court considers the financial standing of the parties and their ability to provide for the children. The nature of the parent’s job is also a factor. The Court is more likely to award custody in favour of a parent who has a stable job that doesn’t require frequent travels out of town as opposed to a parent who travels frequently. In Okwueze v Okwueze[4], custody was granted to the mother because there was evidence that she had a more stable job (with regards to location) and a place of abode.

 

iii.                The amount of affection between the child and each of the parents: The Court of Appeal in Ayemoba v Ayemoba[5] awarded custody to the mother of the child because there was evidence that following the dispute between the parties, the father alienated the child. Similarly in Eziaku v Eziaku[6], the Court also awarded custody of the child to the mother because, at the conception of the child, the father denied paternity of the child and even chased the mother out of the matrimonial home whilst she was pregnant for the child. This influenced the decision of the Court in granting custody to the mother of the child.

 

iv.                Misconduct of the parties: Misconduct of the parties does not necessarily play a role in the award of custody; however there are some instances where misconduct will be considered in the award of custody to a parent. This usually comes up where other factors are in place, for instance where both parties have made equally laudable arrangements for the child and they both have the suitable income to provide for the child. In the case of Alabi v Alabi[7], the Court held that persistent acts of misconduct & moral depravity by one of the party may be evidence of the unsuitability of that party to be entrusted with the custody of the child. Similarly in Eziaku v Eziaku, there was evidence of ill-treatment of the wife by the husband. The Court while considering other extraneous factors held that it was in the best interest of the children of the marriage that custody be awarded to the mother.

 

v.                  Where the children are of tender age and the sex of children: Although there is no settled law that children of tender age should be left with the mother, there is however a presumption that children of tender of age, male or female are better off in terms of welfare and upbringing left with their mother.[8] This is a presumption that can be rebutted by evidence of immorality of the mother, insanity of the mother or cruelty to the child. In the case of Ojeniran v Ojeniran[9], there was evidence that the mother of the child was cruel to the child and also mishandled the child. Custody of the child was awarded to the father of the child. There is also a presumption that male children should be with their father for guidance and support as they come of age.[10] Similarly, female children are also presumed to be better off with their mother because of their formative years[11]. While male children are presumed to be better left with their fathers during their formative years in other to have a male figure in their lives to provide guidance.[12]

 

vi.                The possibility of remarriage and that the child may become an impediment or one of the parents is already living with a third party who may not welcome the presence of the child is also a factor considered by the Court.[13] The Courts are reluctant to award custody of a child to a party where the child may become an impediment or may not be well treated.

 

vii.              The degree of familiarity between the child and each of the children respectively. In a case where the children of the marriage had been living with the mother pending the dissolution proceedings, the Court held that it was clear that the children of the marriage had settled with the mother and there was no reason to disrupt that.[14]

 

viii.            The fact that young children, should as far as practicable, live and grow together. In Nanna v Nanna, the Court granted custody of the children of the marriage to the mother holding that it wasn’t in the interest of the children to be shifting base from one place to another.[15]

 

Joint Custody

 

The Matrimonial Causes Act provides that an order made by the Court granting custody to a party of the marriage or any other person may include a provision of access to the child by the other party of the marriage or the parties of the marriage in situations where custody is granted to a third party. The Courts have also held that custody can be divisible between the parents of the child.[16] In Alabi v Alabi, the Court in granting joint custody to the parties held that the mother of the child was charged with the exercise and control of the child while the father was charged with the education of the child and the father shall also have access to the child. The Courts in several instances have also awarded reasonable access of the child to the other party with visitation rights[17] and/or access during long holidays.[18]

 

Finality of Custody?

 

Custody of a child or children is a matter which can be dealt with from day to day, there is no finality about an order for custody in any court[19] In a matrimonial proceeding, a decree shall not be made absolute until the Court is satisfied as to the arrangements made for the upbringing of the child of the marriage and a decree absolute made on an inadvertent non-compliance with the custody and maintenance of the child shall be declared void[20] Parties can approach the Court in instances where the other party has failed to comply with the conditions of custody for instance, where a parent has denied the other parent access to the child in contravention of the order of joint custody made by the Court. Also in instances, where there is a supervening circumstance that affects the grant of custody, an affected parent or even a guardian may approach the court to review the grant of custody.

 

Conclusion

 

Grant of custody of the child/ children of a marriage is not a one size fits all. It is determined and resolved by the Court based on the particular circumstances of each case while having regards to laid down factors. It is thus imperative for parties to properly and adequately present their cases before the Court in other to be granted custody.

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[1] Otti V Otti (1992) 7 NWLR (Pt 252) 187

[2] See Rule of the Matrimonial Causes Act

[3] See Nanna v Nanna (2006) 3 NWLR (Pt 966) Pg 1

[4]  (2019) LPELR- 48403 (CA)

[5] (2018) LPELR-45385 (CA)

[6] (2018) LPELR- 46373 (CA)

[7](2007) 9 NWLR (1039) 287. See also Lafun v Lafun (1967) NMLR, 401

[8] Odogwu v Odogwu (1992) 2 NWLR (Pt 225) 539; Tabansi v Tabansi (2009) 12 NWLR (Pt 1155) Pg. 415

[9] (2018) LPELR- 45697 (CA)

[10] William v William (1987) 2 NWLR (54) 68; Oduche v Oduche (2006) 5 NWLR (Pt 972) Pg 102; Otti v Otti supra; Uzochukwu v Uzochukwu (2014) LPELR-24139 (CA)

[11] See Alabi v Alabi supra; Uzochukwu v Uzochukwu Supra

[12] Otti v Otti Supra; Uzochukwu v Uzochukwu Supra

[13] See Eluwa v Eluwa (2013) LPELR- 2210 (CA); Akinbuwa v Akinbuwa (1998) 7 NWLR (Pt 599) Pg. 601

[14] See Anoliefo v Anoliefo (2019) LPELR-47238 (CA)

[15] See also Eluwa v Eluwa Supra

[16] See Otti v Otti Supra

[17] See Akinbuwa v Akinbuwa Supra

[18] See Uzochukwu v Uzochukwu supra, where the Court granted care and control of the child to the mother while the father of the child was charged with the maintenance and education of the Child and he had a right of access to the child. The child was also to spend long holidays with her father

[19] Hayes v Hayes (2000) 3 NWLR (648) 276

[20] Hayes v Hayes; See also Nanna v Nanna supra