Recently, especially during the COVID’19 Pandemic marriages seem to be collapsing and the rate of divorce is alarming. Alongside divorce matters either the husband or wife or even both or other relatives may want the custody of the children of the marriage either with respect to marriage celebrated under the Marriage Act or under customary law in Nigeria. This brings us to a brief but detailed analysis of what custody of a child entails.
The World Health Organization defines a Child as a person of 19 years or younger unless the national law defines a person to be an adult at an earlier age. Legally, a Child may be defined as a minor, otherwise known as a person younger than the age of majority in a country or state, where applicable. Section 2 of the Infants Law Cap 66, which is not applicable to children under customary law, but marriage under the Act ‘child’ is defined as a person under the age of 18 years.
In 2003, Nigeria adopted the Child’s Rights Act to domesticate the Convention on the Rights of the Child. The Child’s Rights Act defines a Child as anyone under eighteen years old which is in contradiction to the Nigerian Law, which is the Young Person’s Act which describes a Child as an individual below the age of fourteen years.
Black’s Law dictionary 9th Edition defines “legal custody as “the authority to make significant decisions on a child’s behalf including decisions about education, religious training and health care”
There is no specific principle of law that custody of a child of tender age should be awarded to the mother in divorce proceedings.[1] But generally speaking, especially in the Southern Region of Nigeria dictates that children are under the custody of their father, exceptions are usually given to children still breast feeding or young females especially whose custody is mostly given to the mother.
In Nigeria, the laws regulating the custody of children in Nigeria are;
The principal consideration of a court in determining the custody of a child is the welfare and interest of the child. Section 17(3) (f) of the 1999 Nigeria Constitution imposes a non-actionable obligation on the Nigerian Government to ensure that children are adequately protected from exploitation, moral and material neglect. Alongside the welfare and interest of a child whose custody is been sought, the conduct of the parents would also be considered by the appropriate court.[2] Also, the commission of adultery by a party to the marriage does not necessarily deprive the party of custody unless the circumstances of the adultery make it desirable.[3] There are also some instances where the court may consult the child as to who he or she prefers to stay with, in the language of the child and this is totally at the discretion of the Honorable Court.
Decisions of custody are entirely at the discretion of the trial judge who will examine and exercise same judicially and judiciously based on the peculiar facts of the case and application of the relevant laws. Custody of a child is not awarded as a reward of good conduct nor is it as a punishment for a guilty party’s matrimonial offences.
Generally, in exercising the discretion of the Court, the court in considering who to grant custody will take into consideration the following;[4]
It is trite that by the clear provisions of Matrimonial Causes Act, CAP 220 LFN, 1990 and the Matrimonial Causes Rules thereunder, the proceedings for custody of a child/ children of a marriage under the Act qualifies as ancillary proceeding or proceeding for ancillary relief which cannot be maintained without an existing pending action which will also serve as sine qua non on the court assuming jurisdiction on the action.[6] The principle that governs custody of a child/children is not codified, thus each case will be determined on its merits.
Types of custody
The circumstances where the court may grant third party custody are where;
Honorable Uwais JSC reviewed all the relevant provisions of the law in the definition of the word child and concluded that custody order will not be made in respect of child who has reached the age of 16.[12] The reason behind this rule is that custody order made in respect of a child under the age of 16 will lapse or cease to be operative when that child attains the age of 16. However, generally orders of custody are not usually made by the court in respect of offspring of a marriage who are above the age of 18 years.
Custody Under the Matrimonial Causes Act
A child or children under the Act is defined as any child adopted since the marriage by the husband and wife or by either of them with the consent of the other; or any child of the husband and wife born before the marriage, whether legitimated by marriage or not and any child of either the husband or wife, including an illegitimate child of either of them and child adopted by either of them if at the relevant time the child was ordinarily a member of the household of the husband and wife.[13] However, it is safe to say that any child or children born before the marriage or legitimated by the marriage that is adopted by another person is not a child of the marriage under the Act.
According to the Matrimonial Causes Act and the Child’s Rights Act, the proper court before whom custodial proceedings may be brought with respect to marriage contracted under the Act, not customary marriage, is the High Court or Magistrate Court depending on the facts and circumstances of the case. It is pertinent to note that when it is a marriage contracted under the Act, there would be a reliance on the Matrimonial Causes Act and as such the Matrimonial Causes Act provides that the proper court to entertain such proceedings with respect to dissolution and custody is the High Court of the State.[14]
In the proceedings for custody of a child in marriage under the Act, the best interest of the child or children is of paramount importance.[15] The interest of the child/ children relates to their physical, mental, moral and psychological welfare. In a popular case with respect to custody of a child under the Act, the Supreme Court held that the sending of a girl child to England to study abroad was not in her best interest as the erudite Justice stated reasonably that ;
Education or the opportunity for education is in the best interest of a child if it is in a proper environment. For a child of tender years, education outside the proper environment, that is, country of origin is bound to give a distorted view of life and cannot in the final analysis be in the best interest of the child.[16]
In my opinion, this may not necessarily be applicable in these times as most children are sent abroad to study due to the slow system of education and inadequate facilities in the educational institutions we have in Nigeria.
The welfare and best interest of a child of a marriage that has broken down irretrievably is not the only paramount consideration but a condition precedent to the award of custody to anyone seeking custody.[17] The custody of a child depends upon the facts and circumstances of each peculiar case. Whenever any of the spouses discovers that conditions have changed or been altered for the worse in respect of the interest, benefit and welfare of the child/ children in the custody of another person or spouse, he or she can apply to the court to review the custody order previously granted.[18] The court has held that custody is a matter that can be dealt with from day to day as there is no finality about an order for custody in any court.[19]
The Section 71 (1) of Matrimonial Causes Act, CAP 220 LFN 1990 gives the court the discretion to make such order in respect of the custody of guardianship, welfare, advancement or education of the child as it thinks fit. Such discretion must be exercised judiciously by the trial court.[20]
Under the Matrimonial Causes Rules, 1970, a party may bring an application for interim orders in respect of the custody of a child/ children of the marriage and this can be brought in different ways. This may be brought by way of a petition or an answer. Also, a Respondent to a petition for a principal relief may even before filing an Answer apply for an Interim order for the custody of the child/ children as the case may be. However, it should be noted that the filling of such application for custody of the child/ children must be filled before the expiration of the time limited for the filing of an answer.[21] Also, in the instance or situation where the application for an order for custody is urgent, the court may hear the proceedings and make an order in the proceedings ex parte.[22]
Oral application with leave of the Court may be made for an interim order for custody of a child of the marriage and in such instance; the court may make an ex-parte order since it is within the court’s power. Also, a person who is neither the parents of a child/ children may make an application for interim order for the custody of a child/ children of the marriage.
Custody under Customary Marriage
The Supreme Court in the case of ZAIDEN Vs MOHSSEN[23] defined Customary Law as; ‘’Any system of law, not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway”. Customary laws are acceptable laws of a community which are written.
Under Customary Court’s Law of various States where customary courts are established, provisions are made relating to custody of children in the event of dissolution of customary law marriages by customary courts.
Customary court has jurisdiction to dissolve marriage celebrated under customary law and has jurisdiction on the question of custody. It is only a customary court, Area Court or Magistrate Court of a State that does not have a Customary court that has original jurisdiction to decide on who has custody of a child in customary marriage and upon the grant of such custody, whoever is granted custody of the child or children must grant access to the other party, except where the court directs otherwise. It has been held that access is a basic right of the child rather than that of the parent. It is usually an important factor in the child’s emotional development.
The Customary courts (South), Area Courts (North) or Magistrate Courts have jurisdiction to hear and determine custody of a child/children in customary marriage. Where there is no valid customary law marriage, the customary court will not have jurisdiction to dissolve an association of man and woman and also have no jurisdiction to make an order relating to guardianship and custody or custody of children under such association.[24]
For a marriage to be subject to Customary law, the celebration of the marriage under that particular system of customary law must have been complied with and the bride price must have been paid. If the conditions for a valid customary law marriage have not been met, the customary court will not have jurisdiction to entertain and determine the issue of custody of the children born under an association or a relationship when there is a breakdown of the association.
The best interest and welfare of the child is considered by a customary court when granting custody of a child, not necessarily the extravagant life the child would live if custody is granted but whatever would help the welfare and psychological development of the child or children.[25] Various customary courts of different States have described that in granting custody to any union of a marriage celebrated under customary law and in any matter relating to the guardianship or custody of children, the interest and welfare of the child shall be of paramount consideration.[26]
In a decided and reported case in the Northern part of Nigeria, a custodial proceeding was held to be invalid on the ground that the High Court of the State lacked original jurisdiction to hear custodial maters with respect to customary marriage. It is noteworthy that a High Court of a State has unlimited powers and jurisdiction as provided in the Nigerian Constitution[27] but where a law in a State prohibits the High Court of a state from exercising jurisdiction on some matters, the High Court may not have original jurisdiction except appellate jurisdiction.[28] The High Court may exercise jurisdiction with respect to inquiry and appellate jurisdiction in such instance.[29]
Under most systems of customary law in Nigeria, the father has the absolute right to the custody of his legitimate child/ children but the father’s absolute right will not be enforced where it would be detrimental to the child/ children’s welfare. However, this custodial right of a father over his child/ children does not obtain under statutory marriage.[30] A father has exclusive custodial right over his child/ children of his marriage and during his separation or dissolution of a marriage under the customary law; the father has custody of the children of the marriage.[31] This right extends beyond custody to the ownership of the children. This rule of customary law is hinged on the fact that most Nigerian communities are patrilineal (a few being matrilineal) by reason of which children belong to their father’s lineage.
For instance, the Part VIII Section 68-81 Child’s Rights Act deals with the possession and custody of children as it provides that where both parents were not married at the time of the birth of the child either of them can apply to the Court for parental responsibilities. Although, the Child’s Rights Act is not explicit as to the extent of parental responsibilities but should include provision of necessities and education, generally the welfare of the Child should be put into consideration.
Customarily and in practice, a young child who is yet to be weaned is generally awarded to the mother but when the child has attained the age of maturity, the child is generally awarded to the father as the father under customary law has absolute right to the custody of the child/ children, notwithstanding, the absolute right of the father to the custody of the child/ children under customary law would not be enforced where it is detrimental to the welfare and interest of the child/ children.[32]
Conclusion
In conclusion, it is noteworthy that the interest of the child/ children of a marriage whether marriage under the Act or marriage celebrated under the customary law is the paramount consideration of who custody would be granted to. Also, it should be clear that the fact that one of the parents seeking custody of a child/ children is not a Nigerian does not mean custody would not be granted to him or her, especially if the other party, that is, the Nigerian, is unfit to be granted custody.[33] Irrespective of being a marriage celebrated under customary law or a marriage under the Act, the best interest and welfare of the child should be the number one consideration before awarding custody to either of the parties. Also, the peculiarities of each customs determines what customary courts may follow with an exception to where a custom is repugnant to natural justice, public interest and good conscience. I am also of the view that the customary laws on custody of a child to a customary marriage should put the interest of the child ahead of its customs in the particular area
It therefore suffices to state that the predominant factor for custody of a child either in customary or statutory marriage is the best interest and welfare of the child.
REFERENCES
Contribution by:
Ifeoluwa Badejo
Ifeoluwa Badejo is an Associate Partner;
Sun Natha-Alade & Partners (SNATHAP)
Legal Practitioners
snathaplegals@gmail.com
08155377099