By Babayemi Olaniyan Esq, LL.M, Notary Public, ACIArb(UK), ACIS
INTRODUCTION
When a marriage has broken down irretrievably, one of the most sensitive issues that arises custody of the children. This decision is never taken lightly. The Nigerian law entrusts the Court with the primary responsibility of determining who should assume primary custody or joint custody. It could be a parent or, in some cases, an extended family member. The aim is not to reward or punish either parent but to protect the welfare of the child.
In reaching this decision, Nigerian courts adopt the guiding principle of the best interest of the child. This standard prioritises the physical, emotional, psychological, and educational welfare of the child above competing parental rights. This article explores the concept of child custody and examines the legal foundation of the best interest principle under Nigerian law.
UNDERSTANDING THE MEANING OF CHILD CUSTODY
Child custody goes beyond deciding where a child lives. It refers to the legal right and responsibility to care for and make decisions about a child’s upbringing. It is the duty to oversee their welfare and needs, ensuring the stable development of that child. In Black’s Law Dictionary 8th Edition (2004), custody is defined as:
“The care, control and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision-making authority) and physical custody (caregiving authority), and an award of custody usually grants both rights…”
In practice, custody is about more than parental rights. It is about protecting the child’s well-being. This is why Nigerian courts always look beyond the wishes of the parents and focus on what outcome best serves the child.
THE ‘BEST INTEREST OF THE CHILD’ PRINCIPLE IN NIGERIAN LAW
When deciding custody, Nigerian courts do not automatically favour one parent over the other. Instead, they apply the best interest of the child principle, which is firmly established in Nigerian law. Section 1 of the Child Rights Act (2003) provides:
“In every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration.”
The power of the Court of Law to grant custody in divorce proceedings is given breath by Section 71 of the Matrimonial Causes Act (1978). However, Section 71(1) provides the principle of ‘best interest of the child’ in all its actions, which provides:
“In proceedings with respect to the custody, guardianship, welfare, advancement or education of the 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 matters as it thinks proper.”
This means the child’s welfare must come first before the rights, wishes, or grievances of either parent. The courts have repeatedly affirmed this position. In Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297 at 346-347, paras H-A, the court held that the welfare of the infant is not the only paramount consideration, but a condition precedent; the award of custody should not be granted as a punitive measure on the party guilty of a matrimonial offence, nor as a reward for the opposing party. In Okafor v. Okafor (1972, unreported),it was held that although the father (the respondent) was responsible for the breakup of the marriage, the child was familiar with him and had been well catered for by him. Accordingly, custody was given to him.
FACTORS THE COURT CONSIDERS IN CUSTODY CASES
While the child’s welfare is paramount, courts also consider other factors to ensure custody decisions are fair, practical, and in line with the child’s needs. As highlighted in Alabi v. Alabi (supra) at 347-348, ParasD-A, the court considers:
- The degree of familiarity of the child with each of the parents (parties);
- The amount of affection by the child for each of the parents and vice versa;
- The respective incomes of the parties;
- Education of the child;
- The fact that one of the parties now lives with a third party as either a man or woman;
- The fact that, in the case of children of tender ages, custody should normally be awarded to the mother unless other considerations make it undesirable, etc.
These factors guide the court in exercising discretion to ensure that custody orders truly serve the child’s long-term well-being.
WHY THIS MATTERS FOR PARENTS
Custody battles are often emotionally draining. Understanding how Nigerian courts decide custody can help parents approach the process with realistic expectations. It should be noted:
- Custody is not about punishing or rewarding either parent.
- The child’s welfare will always outweigh parental disagreements.
- A parent who can demonstrate stability, care, and a healthy bond with the child will be in a stronger position for custody of the child.
- Courts often encourage cooperation, as joint or cooperative parenting arrangements tend to reduce conflict and serve the child’s interests.
CONCLUSION
Child custody in Nigeria is guided by one Core principle: the best interest of the child. While factors such as the child’s age, level of attachment, education, and each parent’s financial capacity are essential, they are secondary to ensuring the child’s welfare, stability, and healthy development.
For parents, this means custody cases should not be seen as a battle to “win” against the other spouse. Instead, the focus should be on showing the court how living with you best secures your child’s future. With the proper legal guidance, parents can approach custody proceedings with clarity, reduce unnecessary conflict, and most importantly, protect the well-being of their children.
Babayemi Olaniyan is a family law expert with years of expertise in resolving family law matters.
Contact
Email: yemiolaniyan00@gmail.com, www.lehiattorneys.com
Caveat! The content of this article is for educational purposes and is intended to provide a general understanding of the topic discussed. It is not intended to serve as legal advice whatsoever. If the contents appeal to you and you would want further clarification on any of the points raised therein, do not hesitate to reach out to our team.