By OSENI RASAQ.A
LEGAL DRAFTMAN TO FAISABU& CO, ADEWARATAJUDEEN& CO,M.A. SANNI & CO.
The word “custody” is synonymous with the words: “guardianship”, “wardship”, “charge”, “care”, “safe-keeping”, “protection”, “supervision” or “superintendence”, “control” etc. Thus, custody of children implies the care, control and maintenance of children which may be awarded by a court of competent jurisdiction to a party to a statutory marriage either as an ancillary relief consequent to matrimonial proceedings or to a third party entirely as an independent suit, if the best interest of the children would be better served by it. In the case of OTTI V. OTTI (1992) 7 NWLR (PT 252) 187 AT 210, the Court of Appeal defined custody as essentially concerning the care, control and preparation of a child physically, mentally and morally; it also includes responsibility for a child with regard to his needs like food, clothing, instruction and the like. Section 71(1) of the MCA provides as follows:
“In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage the court shall regard the interest of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper”.
In matters of custody of children, this section of the MCA confers on the court a discretion concerning the proper order to make, bearing in mind the interest of the children as it relates to their physical, mental and moral welfare.
- CHILDREN SUBJECT TO CUSTODY ORDERS
The children in respect of whom custody orders may be made are those envisaged under section 69 of the MCA; i.e. children of a statutory marriage. This implies that children of a customary law marriage or those born out of wedlock are not included within the categories of children in respect of whom orders of custody may be made. Nevertheless, note that under Common Law rules, the mother of a child born out of wedlock has the first right to custody, unless the biological father of the child can prove to the satisfaction of the court that the mother is unfit to look after the child. In the case of OKOLI V. OKOLI (2003) 8 NWLR (PT. 23) 565 AT 580, the Court of Appeal discussed the custody of children born outside wedlock and held that the custody of a child born outside wedlock belongs to the mother in the absence of any person claiming custody of the child on the basis of being the natural father.
- THE DISCRETION OF THE COURT
The provisions of section 71(1) of the MCA confers on the court an absolute discretion to determine what is in the best interest of children and make the appropriate orders that best support those interests. Under sub-sections (3) and (4) of section 71, these orders may include: orders to place children in the custody of persons who are not parties to the relevant marriage (if that option is in the best interest of the children) and grant access to the child by one or both parties to the marriage; or orders to grant access to children in the custody of one party by the other party. The discretionary power of the court also covers the situation where it can receive in evidence, reports from welfare officers on matters that are relevant to the custody proceedings before the court as provided for in section 71(2) of the MCA. The court has the power to adjourn proceedings to allow for time to prepare the report where necessary. The report of the welfare officers is expected to cover all aspects of the life and welfare of the child in question.
A welfare officer is defined in section 114(1) of the MCA as “a person authorized by the Attorney-General of the Federation by an instrument in writing to perform duties as a welfare officer …” Such persons include:
- a person who is permanently or temporarily employed in the public service of the federation; or
- a person who is permanently or temporarily employed in the public service of a state and whose services has been made available for the purpose of the Act in pursuance of an arrangement between the federation and the state; or
- a person nominated by an organization undertaking child welfare activities.
In the unreported case of OLADETOUN V OLADETOUN SUIT NO. HO/111/7076/7/71, it was held that owing to the intricacy of the question of custody in the case, it was desirable that the court should he assisted by a welfare officer. According to Adefarasin J:
“The matter of custody in the facts of this case is such an intricate one that I consider it should not be ruled on; I think it is desirable that the court should be assisted by the investigation and advice of a welfare officer as provided for under section 71(2) of the Matrimonial Causes Decree of 1970”.
In all circumstances, the court is expected to exercise the discretion conferred under section 71 judicially and judiciously. This means that the court must exercise impartiality and sound judgement in determining the proper order to make in respect of custody of children.
- THE INTEREST OF CHILDREN
There is no precise definition of the phrase “interest of child” either in the MCA or anywhere else. This fact was emphasized in the case of ODOGWU V. ODOGWU (1992) 2 NWLR (PT. 225) 539 where Belgore, JSC opined that the phrase is not limited to material provisions, but include those things that will assist the psychological, physical and moral development of the child; things that would promote the happiness and security which a child of tender years requires. In his words: “Welfare of a child is not the material provision in the house, good clothes, food, air-conditioners, television and gadgets normally associated with the middle class; it is more of the happiness of the child and his psychological development. While it is good a child is brought up by complementary care of the two parents living happily together, it is psychologically detrimental to his welfare and ultimate happiness and psychological development if material care available is denied him”. The interest of children as envisaged under section 71 of the MCA embodies several factors which depend on the peculiar circumstances of each case. These factors include but are not restricted to the physical, psychological, moral and overall developmental wellbeing of the children; as well as factors like the ages of the children, the arrangements made for their accommodation, education, welfare, general upbringing, and the conduct of the claimant. Karibi-Whyte, JSC summed up these factors in the case of Williams v. Williams (1987) 2 NWRL (Pt 54) 66 at 89 thus: 171 “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”. The learned Justice also interpreted the phrase “paramount consideration” to mean “pre-eminent and superior consideration” in the same case. On his part, Oputa J [as he then was] in the unreported case of OKAFOR V. OKAFOR (1972) considered “paramount consideration” as attaching to the welfare of a child and which is a condition precedent in the determination of custody questions. In considering what is in the best interest of children, the court does not concern itself with extraneous matters like who, as between the parties is responsible for the breakdown of the marriage which has necessitated the proceedings for custody. Thus, while exercising its discretion, the court does not award custody to one party as a favour to that party or as punishment for the other party, who in the opinion of the court had conducted himself or herself badly. In the Okafor case cited above, the learned judge opined that the award of custody of children is based on other factors that are outside the guilt, innocence or blameworthiness of the relevant parent or parents. Before awarding custody of the only child of the marriage to the respondent who was in fact responsible for the breakdown of the marriage, having been in constructive desertion, the judge noted that “custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences.” The court based its decision on the fact that the child in question was used to the respondent who had also taken good care of him during the period of desertion. Since the child could no longer recognise the petitioner, it was in the best interest of the child to remain with the respondent despite his guilt in the divorce proceedings.
- OTHER FACTORS/CONSIDERATIONS IN THE AWARD OF CUSTODY
Apart from the interests of children being of paramount consideration in determining questions of custody, the court also takes some other factors into consideration in order to arrive at the best possible decisions that would support the interests of the children. Some of these factors or considerations were identified in the case of Williams v. Williams (supra) and the unreported case of IHONDE V. IHONDE  to include: the age and sex of children; the personal wishes or preferences of the children; the children’s social and religious backgrounds; their moral welfare; the financial status of the parties to the marriage and the arrangements made by each party for the education, general welfare and upbringing of the children; the conduct of the parties; the promotion of filial companionship among the children by keeping them together etc. Some of these factors are dealt with hereunder as follows.
- AGES AND SEX OF THE CHILDREN
Neither statutory nor case law lays down any specific principles which courts are bound to observe on the factors of age and sex in the determination of who should get custody of children of a particular age or sex. Nevertheless, it is generally believed that female children are better left in the care of their mothers, and males with their fathers; especially considering that the Nigerian society is largely patrilineal in nature and boys usually belong to the father’s family and should be socialised within the paternal family. This was the majority view of the Court of Appeal in the case of OYELOWO V. OYELOWO  2 NWLR (PT 56) 239 AT 246, where the court opined that for male children, “their rightful and natural place is their father’s home” In the same spirit, the court in the case of ODULATE V. ODULATE  1 CCHCJ 101, awarded custody of the female child of the marriage to the mother on the ground that a girl “has the right to develop her personality under the mother” who, in ideal cases, is a role model for the child. Again, there is also a general belief that a mother is better suited to care for, and attend to the physical and emotional needs of children of very tender ages. However, the fact that a child is of a tender age does not necessarily mean that its custody will always be granted to the mother if it would not be in the best interest of the child to do so. In the unreported case of OLADETOHUN V OLADETOHUN , the court found the mother of the only child of the marriage to be an unsatisfactory wife and a bad mother who practised juju; nevertheless, it granted her custody of the child who was three years old, on the ground that doing so even if temporarily, was in the best interest of the child.
- THE PERSONAL WISHES OR PREFERENCES OF CHILDREN
The personal wishes and desires of children sometimes count in custody proceedings, especially when the affected children are old enough to make their preferences known to the judge or a Welfare Officer that has been mandated to interview the children concerning their preferences as between the applicants for their custody. In some cases, the judge in the custody proceedings, may interview the children privately in order to determine their wishes which he may or may not give effect to. In ODOGWU V ODOGWU (1992) 2 NWLR (PT 225) 539, the Supreme Court held that the court could consult the child’s wishes in considering what order to make.
- THE SOCIAL, RELIGIOUS, MORAL AND EDUCATIONAL WELFARE OF CHILDREN
The courts usually give consideration to the advantages and disadvantages of any arrangements for the social, religious, moral and formal education the child. Since these factors affect the overall socialisation and education of the child, the courts are usually anxious to ensure that whatever decision is reached in these respects reflects the best for the child. In matters of formal education for example, the court would look at several factors besides the geographical location of schools being proposed for the education of the child. The court would consider other factors like the impact the social, moral and religious environment of the societies wherein the schools are located would have on the overall development of the child. In WILLIAMS V. WILLIAMS (SUPRA), OBASEKI JSC was of the view that education is in the best interest of the child if it is in a proper environment. Oputa, JSC opined in the same case that education that alienates a child from his roots no matter how intellectually sound, is to be viewed with a suspicious eye by the Court in custody cases, because educating Nigerian children of tender ages in foreign lands would not give them the kind of training required for them to live and survive in Nigeria. According to the learned Justice, a boarding school in England was not a fitting substitute to a mother’s care and attention. He continued thus: “A Nigerian should be trained to live in Nigeria and not become an expatriate in his own country … There are periods in a girl’s life when she is undergoing the slow advance to maturity when she needs her mother to discuss and answer her many questions about herself, her development, both physiological and psychological.”
- EQUALITY OF PARENTS/CONDUCT OF THE PARTIES TO THE MARRIAGE
In his very exhaustive definition and implications of custody in the Williams case, Obaseki, JSC made the points firstly, that in matters of custody of children, both parents have the same equal rights before the law that they both can exercise. Neither of the two parties can exercise a claim that is superior to the other party’s claim to custody. Even where one of the parents is not a Nigerian citizen, the courts do not discriminate against such a party in the award of custody. The primary consideration is the welfare of the children concerned. In OLOYEDE V. OLOYEDE (1975) 1 NMLR 18, the court found the Nigerian father unfit to have custody as against the unimpeachable Irish mother. The court held that the fact of the mother being a non-Nigerian does not justify denying her custody.
Secondly, the court should focus on the welfare of the child rather than the conduct of the parents in the marriage, unless such conduct is of a nature that would have negative implications for the child. The learned Justice opined that “an order of custody is not a penal order on either parent and should not be construed as such.” Though the conduct of the parents to a child is a matter to be taken into account in determining what is in the best interest of the child, a parent should nevertheless be deprived of custody merely because of his/her conduct which might have contributed to the breakdown of the marriage. Even in cases where adultery is alleged, the learned Justice held that the adultery of a party should not necessarily be the reason for depriving that party of custody unless the circumstances of the adultery make it desirable. Note however, that the court may not entirely disregard the conduct of the parties in relation to the breakdown of the marriage while considering the best interest of children. According to the court in the case of AFONJA V. AFONJA  1 UILR 105, the “welfare of the infant although the first and paramount consideration, is not the sole consideration and the conduct of the guilty party is a matter to be taken into account.” For example, serious and continuing misconduct, or moral depravity on the part of one party may occasion a declaration that he or she is not a proper person to be entrusted with the care of children. In LAFUN V. LAFUN  NMLR 101, the court awarded custody of the child of the marriage to the petitioner-father and refused to grant access to the child to the respondent-mother until the child attained the age of 14 years, subject to petitioner’s consent. This was because the evidence before the court pointed to moral depravity on the part of the respondent and it was not in the best interest of the child for the respondent to have access to him in his formative years, since he could easily be negatively influenced by the respondent’s immoral conduct.
Again there are cases where the previous conduct of a party in relation to children cannot be ignored by the court in determining whether or not to grant custody of a child to that party. In the unreported case of KOLAWOLE V KOLAWOLE (1982), a mother was denied custody because she had previously attempted to kill the child in question. Similarly, the court refused to grant custody of the only child of the marriage to the mother who had completely abandoned the child for nearly six years in the case of OKAFOR V OKAFOR (SUPRA).
- FINANCIAL STATUS OF PARTIES AND ARRANGEMENTS FOR GENERAL CARE OF CHILDREN
The financial strength and stability of parties in custody proceedings is relevant to the determination of what is in the best interest of children. This financial base must be supported by adequate arrangements for the general welfare of the children, these being: suitable accommodation, education/training, medicare, upbringing etc. Where a party’s case is dependent solely on material wealth without adequate arrangements for the welfare of children, the court may not be disposed to awarding custody to that party. This was the decision of the court in the English case of Re McGrath (1893) 1 Ch. 143.
- MISCELLANEOUS FACTORS
Depending on the peculiar facts of each case, custody of children may also be determined by some other factors that courts have taken into consideration in the past. These factors include:
- The promotion of filial companionship among the children of the same parents/household by keeping them together in the same place, unless it is not in the best interest of the children to do so.
- The prevention of any psychological damage to children by keeping them in the custody of a party they are either not used to or comfortable with or even a complete stranger. In the Okafor case for example, the court was particularly mindful of the fact that the child was too close to the father to be separated from him inspite of his young age. In H V. H AND C (1969) ALL E.R 262, the court awarded custody to the father with visiting access to the mother since in all the circumstances it would be very upsetting to remove the child suddenly from a house he was used to.
- 0. THE ORDER FOR CUSTODY
It was stated at the beginning of this discourse that custody of children implies the care, control and maintenance of children as an ancillary relief to a matrimonial order. When a court has weighed all the evidence before it and considered all factors relevant to a particular case, it exercises a discretion as to whether or not to grant custody, in whose favour to grant the custody and the nature or form the custody order should take; provided that the best interests of the children is served by its decisions. Although the MCA does not make provisions for the kinds or nature of orders a court can make with respect to custody of children, courts have in the past, followed the practice in England where necessary. The following are examples of custody orders a court can make.
2.1. PHYSICAL CUSTODY
Physical custody involves an order of court which grants the right to organize and administer the day to day residential care of a child to either one or both parents of the child. Where one of the parents is awarded sole physical custody, it means that that parent has the sole right to live with a child or children of the marriage on a permanent basis. The other parent may be given visitation rights on designated days or periods, depending on what the court considers to be in the best interest of the children. In such a situation, the parent with visitation rights may be ordered to pay maintenance to the physical custodian for the education and general upkeep of the children. But where the court awards joint physical custody to both parents, it means that the child or children would spend significant amounts of time with both parents during periods either mutually agreed on by parents or on a regular schedule imposed by the court where the parents are unable to agree on a schedule. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
2.2 . LEGAL CUSTODY
Legal custody of a child implies the right to make, or participate in the major decisions affecting a child’s education, religion, health and general welfare. Legal custody may be awarded to one or both parents, depending on the circumstances of each case. Where joint legal custody is awarded to both parents, it means that they would necessarily consult with each other before any decision can be taken in matters affecting the children by either of them. In most cases, courts prefer to award joint legal custody unless there are circumstances that make it impossible to share joint legal custody such as where one parent refuses to communicate with the other about important matters or where one parent is found to be unfit to be entrusted with that responsibility.
2.3. SOLE CUSTODY
A sole custody order is an order for the care, control, and maintenance of a child which is awarded by a court to one of the parents of a child or children, to the exclusion of the other, following proceedings for divorce or separation, whether judicial or extra-judicial. Courts generally don’t hesitate to award sole custody to one parent if the other parent is deemed unfit, e.g. where such a parent is a violent alcoholic or drug addict, a habitual criminal or a proven child molester. One parent can have either sole legal custody or sole physical custody or both sole physical and legal custody of a child or children. However where courts do award sole physical custody, the parties, more often than not still share joint legal custody, with the noncustodial parent having rights of visitation. In that situation, one parent becomes the primary physical caretaker, while both parents take joint decisions about the child’s upbringing. In the case of ABAYOMI V. ABAYOMI  12 CCCHCJ 1877, the court awarded legal custody of and visitation rights to the child to the father and physical custody to the mother.
2.4. JOINT OR SHARED CUSTODY
A court may order joint/shared custody of children where the parents do not live together. This implies that both parents would share the decision-making responsibilities for the children, and/or take turns to have physical control and custody of the children. The order may be made in cases of divorce, judicial separation, or in cases where the parties are living apart before matrimonial proceedings for divorce or judicial separation are filed. A joint custody order usually implies that the parents must work out some sort of time table or schedule that best suits everybody in terms of their own job requirements, housing arrangements, the children’s school and other needs. Where the parents are unable to agree on a schedule, the court will impose the one that is in the best interest of the children on the parties. Some typical schedules involve spending some weeks at a time in each parent’s house, or alternating months, years, or six-month periods, or spending weekends and holidays with one parent, while spending weekdays with the other parent, where that arrangement best suit the children’s schooling needs. In Western countries, there is a joint custody arrangement called “bird’s nest custody” whereby the children remain in the original family home and the parents take turns moving in and out, spending their out time in their own private accommodation.
A joint custody order has some advantages and disadvantages. Continuing contact and involvement of the children with both parents is one major advantage even though on the minus side, the children are constantly shuttled around. Where the parents lack cooperation or are constantly quarrelling, the ill-will thereby generated between them has negative effects on children. Joint custody orders may take the form of:
(a) joint legal custody; or
(b) joint physical custody whereby the children spend some appreciable time with each parent; or
(c) a combination of both joint legal and physical custody.
Note that it is common for couples who share physical custody of children to also share legal custody, but not necessarily the other way around. This means that both parents who share legal custody do not necessarily share physical custody, i.e. the care and control of the child. In the case of Williams v. Williams (supra), the court awarded joint legal custody to the parents of the child but granted the mother the physical custody of the child.
2.5. SPLIT CUSTODY
Split custody involves awarding legal custody to one parent while the other parent gets physical custody. This implies that the parent with legal custody has the right to make the major decisions affecting a child’s education, religion, health and general welfare while the parent who has physical custody controls the daily management and training of the child. In the unreported case of ABAYOMI V. ABAYOMI  12 CCHCJ 465, the court made a split custody order granting legal custody of the four-year old child to the father, and care and control of the child to the mother.
2.6. TEMPORARY PARENTAL
Custody Order XIV Rules 21 – 23 of the MCR provide for the grant of temporary physical custody of children to either party to the marriage, pending the disposal of the main matrimonial proceedings. The order may be made ex-parte or on notice depending on the urgency of the situation. Under Rule 23 of Order XIV, the order for maintenance may be made ex-parte following an oral application provided that the leave of court is first sought and obtained to make the application, and the claimant undertakes to file the necessary court processes in respect of the application as soon as practicable. Any order made in this circumstance must indicate the duration of the order and directions regarding the services of relevant court processes on the other party as well as further hearing of the proceedings for ancillary relief.
2.7. THIRD-PARTY CUSTODY
Section 71(3) of the MCA empowers the court to grant custody of a child or children to a person who is not a party to the marriage, provided that it is satisfied that it is desirable to do so. Orders in favour of third parties are usually made when the court considers both parents of the child not to be fit and proper persons to care for the child; or that it would not be in the best interest of the child to leave him in the care of either parent. The custody order so granted may be on a temporary or permanent basis depending on the circumstances of the case. In the unreported case of NWUBA V. NWUBA , the court granted custody of the three children of the marriage to their maternal grandmother on a temporary basis pending the determination of the petition for divorce then pending in the court. Considering that the children were forcefully separated and isolated from each other (thereby resulting in emotional trauma for them), as a result of the hostilities between their parents, the court decided that it would be in the best interest of the children to keep them together in one place outside the control of either parent. The court said: “I am firmly convinced that the interim order which I made on the 9th August for these three children to remain with their grandmother is in their best interest and that order is to remain in force until the determination of the petition as in the order for access and that of removing the children out of the jurisdiction of this court. Custody is therefore granted to Mrs. Rosemary Inyama pending the determination of the petition”.
3.0. ENFORCEMENT OF CUSTODY ORDERS
Like all court orders, custody orders are enforceable in one of different ways. Section 88(1) & (2) of the MCA provides that an order for custody or access to children may be enforced by attachment of the person in violation of the order until he complies with the order, following which he can be released from detention. Under section 93 of the MCA, a custody order can also be enforced by committing the person against whom it is made to prison for contempt of court or by the issuance of a writ of sequestration. A writ of sequestration is a form of contempt proceedings, except that the action is directed against the property of the contemptor and not his person. A writ of sequestration is one of the ways of executing a court order against a person in contempt of court by his disobedience of the order. It is usually issued after the court has satisfied itself beyond doubt that a contempt of court has been committed.
This article has dealt with the custody of children and it was established at the onset that the custody of children is one of the ancillary reliefs provided for under section 71 of the MCA. In considering an application for the award of custody, courts have discretion to make orders that are in the best interest of those children. In doing this, the courts rely on a number of factors like the age and sex of the children; the wishes of the children; the social, religious, moral and educational welfare of children; equality of the parents; conduct of the parties to the marriage; the financial status of parties; and the arrangements for the general care of the children. Having taken these factors into consideration, courts can then decide whether or not and/or to whom custody of children may be given. The courts may rely on the evidence before them to grant custody, the nature of which may be physical custody, legal custody, sole custody and joint or shared custody. The custody may be awarded to either or both parents of children or in appropriate cases to a third party completely.
This article has dealt with a number of issues relating to custody of children as an ancillary relief to matrimonial proceedings. As discussed at the onset, custody of children implies the award of the care, control and maintenance of children to parties to a marriage in crisis or a third party completely where it is in the best interest of children to do so. The categories of children in respect of whom such custody orders may be made are those within the purview of section 69 of the MCA. The courts have absolute discretion to grant custody orders based on a number of factors like: ages and sex of the children; the personal wishes or preferences of children; the social, religious, moral and educational welfare of children; equality of parents/conduct of the parties to the marriage; financial status of parties and arrangements for general care of children; the promotion of filial companionship among children and the prevention of any psychological damage to children through forced separation or cohabitation etc. In exercising its discretion based on these factors, the court must make its order based on what is in the best interest of the child(ren). An order for custody can take any or a combination of the following forms: physical custody; legal custody; sole custody; joint or shared custody; split custody; temporary parental custody; and thirdparty custody. Such orders may be enforced either by attachment, committal to prison for contempt or by writ of sequestration.
By OSENI RASAQ.A
LEGAL DRAFTMAN TO FAISABU& CO, ADEWARATAJUDEEN& CO,M.A. SANNI & CO.