WHO GETS CUSTODY UPON THE DISSOLUTION OF MARRIAGE; THE HUSBAND OR THE WIFE?
WHAT ARE THE FACTORS THE COURT CONSIDERS?
By Anthony I. Ndanusa Esq (LL. B, BL, CompTIA A+)
ABSTRACT
In the fortunate or unfortunate circumstance where the parties to a marriage have found it difficult to cohabit together resulting in the irrevocable breakdown of their marriage, questions arise as to the maintenance and welfare of their children. There is usually a debate as to the factors which are considered to ascertain which party would be granted custody and why he/she would be granted custody by the Court. In this discus, I will try to overlay some of the factors to the Court usually considered in the granting of custody and how they arrive at the same.
INTRODUCTION
When two parties to a marriage agree to end their marriage, determining who gets the children is one of the most important decisions they will have to make. Being that the child/children of the marriage belong to both parties they are ordinarily construed to have an equal right to the child or children as the case may be. But since the marriage has broken down each party will now be constrained to live separately hence the issue of custody.
While custody can be both sole and divided it is the aggregate right of one party to have guardianship of the Children over the other. Legal custody of a child, however, can be defined as having the right and obligation to make decisions concerning the child’s upbringing. These may include schooling, religion, medical care, and lifestyle choices. When a situation arises which makes the parent unable to make this decision without dispute, or allegations against their spouse or partner, the law is set to determine who gets custody at the end of the day. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody which is the right and duty to house, provide and care for the child. Usually, Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption, or parental death.
In Nigeria, custody of the child primarily rests in the best interests of the child. Though the term “custody” is not defined in the Matrimonial Causes Act, however, the Black’s Law Dictionary 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”. Although there are several legal instruments like the Violence Against Person Act and the Child Right which make laudable provisions on welfare and custody of children in several jurisdictions across Nigeria.
The Matrimonial Causes Act is the principal legal instrument that governs the dissolution of marriage, custody, and the welfare of children in the whole of Nigeria. Part IV, however of the Matrimonial Causes Act deals specifically with the making of orders for maintenance, custody, and settlements. The High Court is empowered under the law to make various orders with respect to the husband, wife, and children of the marriage. By the combined reading of Sections 2(1) & 114(1) of the Matrimonial Causes Act, every High Court of each State of the Federation and the Federal Capital Territory have jurisdiction to hear and determine child or Children custody disputes relating to matrimonial causes. For matters relating to matrimonial causes, the Matrimonial Causes Act empowers the State High Court and High Court of the Federal Capital Territory to make orders for child custody. Section 71(1) of the Matrimonial Causes Act provides specifically:
In the proceeding for the custody, guardianship, welfare, advancement, or education of children of the 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 to those Matters as it thinks proper.
The propriety of the above section was brought to consideration in the case of ODIA V. ODIA (2015) LPELR-25779 (CA) where the Court of Appeal held inter-alia; A communal reading of Section 71(4) and Section 73(1) of the Matrimonial Causes Act gives the Court power to make an order placing a child of a marriage in the custody of a party to the marriage, and in so doing, have the power to modify the effect of the order or to suspend its operation wholly or in part. This is the decision of this Court in Sanni vs. Mabinuori (2014) LPELR 22537 per Augie JCA.
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It is in this light that a Court of Appeal had in mind the primary interest of the child is in a position to vary, suspend, or even add to the condition granted in respect of the custody of the child including visitation rights.
Who gets custody of a child after divorce depends on several factors. Section 71(1) states that “the court shall regard the interest of those children” so to know the facts the court will consider, we have to understand what constitutes the interests of children. There is no stated rule for what constitutes the interests of a child, it entirely depends on the circumstances surrounding each case. Karibi-Whyte JSC in the case of Williams v. Williams said:
“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 the determination of who should have custody”. Wholistically in order to properly ascertain the interest of the child, the court will take into consideration some factors before the custody of the child is determined. These factors are;
• Age and Sex of the child:
There is no laid down a rule concerning the age of a child and how it affects the custody of the child. It all depends on the court following the universal belief that children of young age should be with their mother as the mother is believed to be capable of taking care of them. These all depend on the circumstances of the case. Concerning the sex of the child, it is universally believed that a boy will be in good care with his father and a girl will be in good care with her mother. There is also no law the courts are to follow in regards to the sex of the child in granting custody. These also depend on the circumstances of the case. See the case of OYELOWO V OYELOWO (1987) 2 NWLR 29, Both parents applied for the custody of the two male children of the marriage aged ten and nine years respectively. The children had lived with their mother for two years since the separation of their parents. The Court held that: “As male children, their rightful and natural place is their father’s home. It does not matter how long they stay away from it they will one day long for it.”
Equally in UZOCHUKWU V. UZOCHUKWU (2014) LPELR-24139 the Court Per EKANEM, JCA apposite thus;
“As regards the custody of the two children of the marriage, I note that the first child, Victory Nwachukwu Uzochukwu a male, was born on 31/5/2000 and is therefore 14 years old. The second child, a female, was born on 12/9/2003 and is therefore 11 years old. The paramount consideration in the award of custody is the interest of the children. See Section 71 (1) of the MCA. Both parents appear to be equal to the task of maintaining the children and are ready to give affection and proper guidance to the children. It is my view that the interest of the male child who is 14 years old will best be served by granting custody to the father who will naturally be able to provide strong guidance for the teenage boy. Regarding the female child, I shall refer to the dictum of KARIBI-WHYTE, JSC IN WILLIAM V. WILLIAM (1987) 4 SC 32, 85 as follows: – “In a case like this one where both parents are eminently qualified, able, and anxious to give affection and proper guidance to their child for whom they are responsible; they are likely to co-operate and swallow their vanity in the interest of the welfare of the child because of the affection they have for the child. There can be no real objection in this circumstance for an order for joint custody.”
See also the case of ODULATE V ODULATE, where the court awarded custody of the female child of the marriage to the wife adding that a girl has the right to develop her personality under her mother.
• Conduct of the parties
The conduct of the parties should also be considered to properly determine what the best interest of the child is. Though a parent may not be denied custody only because of his or her conduct which may have further contributed to the dissolution of the marriage. The Court’s judgment also shouldn’t be exercised as a form of punishment for one party or as a reward for the other party. In the case of AFONJA V AFONJA (1971) 1, UILR 105 The court held that it was in the best interest of the infant to be given to the custody of the mother, who was anxious to live with her all the time than to be left in the custody of the father, who had arranged for the child to live with his sister-in-law during school term and to reside with him only during the holidays.
Similarly, In OKAFOR V OKAFOR (2016) LPELR-40264(CA) the court refused to grant the custody of a child of the marriage to a mother who had not seen the child physically for almost six years other than through photographs.
• Medical and Psychological factors
If custody of a child has been with a parent for a considerable period, care must be exercised in the change of custody. This may result in psychological harm to the child. In such a case, the court may order that custody remains with the parent already taking care of the child. In the case of KOLAWOLE V KOLAWOLE, A mother was denied custody because she had previously attempted to kill the child in question.
Other factors include; the nationality of the parents, equality of the parent, financial capacity, adequacy of arrangement for the child, education, and religion.
Notwithstanding the foregoing situation may arise where one party has made provisions for the healthcare, education, and the general well-being of the child, the conduct of this party, sometimes, makes the court grant the custody to this party over the other party who hasn’t done anything relating to the well being of the child. Therefore, persistent misconduct by one party may be evidence that the party is not fit to be entrusted with the custody of a child.
It is noteworthy from the foregoing that a party seeking custody has to set out in the petition plans and arrangements for the child. Thus, where any of the parties can prove that he or she is in a better financial position than the other parent that will be a major factor that the court would consider. This is because any given court will believe that the welfare or the interest of the child will be better protected if the financial needs of the child can be met fully. However, as seen in the case of ALABI V ALABI (2007) LPELR-8203(CA), it is clear that the income of the parties is not the only condition the Court takes into consideration. The Court however considers the evidence placed before it to exercise its discretion judiciously and judicially. In the case of DAWODU V. DAWODU, the court refused to grant custody to a mother who had no home of her own or private means to bring up the child because it was not in the best interest of the child to do so.
It is also important to note that in awarding custody, the court does not discriminate between a foreign party or not. The most important thing is the interest of the child. Using the case of OLOYEDE V OLOYEDE, it was held that the fact that the mother of the child is not a Nigerian did not justify the award of custody to a father who the court found unfit. Also, an order of custody cannot be made in respect of an adult child, that is, a person who is over 18 years of age unless the court thinks that there are special circumstances that justify the making of such an order for the benefit of the child. This means that the court cannot grant custody to a person above 18 apart from persons who are special needs persons.
Furthermore, the court grants Interim Orders. Interim orders mean “for the main time”. The court has wide discretionary powers and it is empowered to grant custody of a child to a third party either permanently or as an interim measure if it considers it to be in the child’s best interest. Section 71{3}states that if it is satisfied it is desirable to do so, the court shall make an order placing the children or some of them as it deems fit, in the custody of a person other than a party to a marriage. In NWUBA V. NWUBA, an interim order was granted for the three children to remain with their grandmother pending the determination of the petition. This is usually the case where in the opinion of the court, neither of the parents is fit and proper to have custody of the child. Where custody is granted to a third party, the court may allow the parents reasonable access to the child. It has been held by the courts that access is a basic right of the child rather than that of the parents.’ It is usually an important factor in the child’s emotional development. Also, the court sets in place welfare officers to check in on the child from time to time to make sure the child is fairing well where he/she is. According to section 72(2), the court may adjourn the proceedings until a report has been obtained from a welfare officer on such matters relevant to the proceedings and any such report may thereafter be received in evidence.
CONCLUSION
Custody in general is granted based on the discretion of the Court. Thus, going by the provisions of Section 71(1) the Court has wide discretion in custody matters.
The Court can also give interim orders as long as it is in the interest of the child though based on the surrounding circumstances of the case.
The Court in exercising its discretion as aforesaid occasionally utilizes the services of a welfare officer. According to section 72(2), the court may adjourn the proceedings until a report has been obtained from a welfare officer on such matters relevant to the proceedings and any such report may thereafter be received in evidence.
Conclusively the Factors that the Court considers are based on the Interest of the Child.
Other factors can be determined based on the facts and circumstances of the case.
Anthony Ndanusa Esq. is an experience Abuja-based Legal Practitioner with Law Corridor a foremost public interest litigation firm in the heart of Asokoro.
For feedback, the writer may be contacted via this platform or on WhatsApp @ 08130660753.
