CHILD CUSTODY IN NIGERIA - THE RIGHTS OF A CHILD
The Concise Oxford Dictionary, 17th Edition defines a “child” as a person who has not reached the age of discretion.”
The adage that ‘When two elephants fight, the grass suffers’; is so true in matrimonial cases involving child custody. If not properly handled, the children ultimately suffer.
A spouse can be so emotionally overwhelmed by the feelings on how badly his /her spouse had behaved in the marriage or how badly he/she was treated in the marriage that they consciously or unconsciously use their children as a pawn in the battle against their spouses, forgetting that they will be the ultimate beneficiaries of the outcome of their children; whether good or bad. Added to this is the effect the outcome of the life of the child would have on society.
No matter how high your emotions run, avoid using your children as a pawn if you must go your separate ways. A spouse knows for instance that by the very nature of his/her job, he/she would not be able to properly care and cater for the child/ children of the marriage or even have time for them; yet would insist on having custody just to get at the other.
The child's best interest should be the primary consideration at all times irrespective of how spouses feel. Thus, regardless of whether the parents were married under the Act or had a customary law marriage or even in cases where the parents were never married and the child or children were born out of wedlock, their best interest should be the primary focus.
A child's welfare transcends material provisions such as a good apartment, good clothes, good food, air-conditioners, television, all gadgets normally associated with the rich and middle class ( if such class still exists). The consideration and thought are more of the happiness of the child and his/her psychological development. This is so important that in some cases where the court so deems fit, it is encouraged to consult the child’s wishes in considering what order ought to be made Re A (all infant) (1955) 2 ALL ER 202 (also in (1955) 1 WLR 465.
It should be noted however that decisions of custody are entirely at the discretion of the trial judge who will exercise the same both judicially and judiciously, based on the peculiar facts of the case and the application of the relevant laws thereto. See WILLIAMS [1987] 2 NWLR pt. 46. In exercising its discretion on whom to grant custody to, the Court will take into account the following:- (a) The health of the children (b) The social and financial status of the parties © The welfare of the children (d) Available facilities for the children (e) Religions and social opportunities available (f) Sex and age of the children.
Thus, where custody issues are before a court of competent jurisdiction, the overall interest of the child or children is what the court considers in granting custody to either parent. The Courts can, where it considers it appropriate also grant joint custody. The overall interest of the child is the consideration at every given time and in whatever circumstance.
Where children are of tender age, the courts are more likely to grant custody to the mother except where there are intervening circumstances. This was the decision by the Supreme Court in the case of ODOGWU VS ODOGWU (1992) LPELR-2229(SC) where the Court held that:
“If the parents are separated and the child is of tender age, it is presumed 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 disease on the mother, insanity, and or her cruelty to the child. These are matters to be tried. Custody proceedings could even be adjourned to judge’s chambers wherein informal hearing, the children’s view could be assessed along with those of the parents. Ojo v. Ojo (1969) 1 All NLR 434, Apara v. Apara (1968) 1 All NLR 241.”
Concerning marriages under customary law, the Supreme Court in the case of OKWUEZE v. OKWUEZE (1989) LPELR-2539(SC) held that:
“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 recognizes that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child — see p.260 of Family Law in Nigeria by E.I. Nwogugu.”-
As a Family Law Practitioner, it is advisable that the parties in a matrimonial cause put aside their hurts and pains and in the interest of the children take time to discuss what is best for them and thereafter file terms embodying these resolutions. The future of the children should not be jeopardised because their parents are engaged in warfare.
The right of a child to a good life should be the paramount desire of parents at all times.
The Child Rights Law of Lagos State specifically provides that every person, institution, service, agency, organisation and body responsible for the care and protection of children shall conform with the standards laid down by appropriate authorities, particularly in the areas of safety, health, welfare, and suitability of their staff and competent supervision.
The Law provides that a child has :
- a right to life, survival and development,
- right to name,
- right to freedom of association and peaceful assembly in accordance with the necessary guidance and direction of his parents or guardians,
- right to freedom of thought, conscience and religion,
- right to private home and family life,
- right to freedom of movement in conformity with the law,
- right to freedom from discrimination,
- right to dignity,
- right to leisure, recreation and cultural activities,
- right to health services,
- right to parental care, and
- right to education
amongst others.
This article is for educational purposes only and should not be substituted for sound legal advice. For a more detailed analysis on this topic with case studies click on this link.
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