By Nneka Geoffrey Chima
INTRODUCTION
The dispute over who should be granted custody of a child following the irretrievable breakdown of marriage is emotionally taxing and legally uncertain. While both parents can claim to love their children deeply, the Nigerian courts adopt a higher standard, ‘the best interest of the child.’ This principle shifts the focus away from parental rivalry and ensures that custody arrangements safeguard the child’s emotional, physical, educational, and psychological well-being above all else. In Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1, the Court of Appeal reaffirmed that neither parental love nor financial capacity alone guarantees custody. The law looks beyond appearances and prioritises what is ultimately best for the child.
FACTS OF THE CASE
The parties married in 1991 but separated in 1996, with the respondent leaving the matrimonial home with their two children. The appellant (husband) filed for divorce on the grounds of desertion and unreasonable behaviour, claiming the marriage had broken down irretrievably. He also sought custody of the children, arguing he had made adequate arrangements for their welfare. In the alternative, he sought holiday custody and unrestricted access. At the trial, the appellant alleged adultery and the absence of affection and love between him and the respondent.
The respondent (wife) filed a counter-petition for divorce on grounds of constructive desertion and cruelty, and also sought custody of the children of the marriage. She gave unchallenged evidence that the appellant coerced her out of their matrimonial residence through threats and violence, and testified to the absence of paternal affection during their time together.
The trial court dismissed the appellant’s petition due to insufficient evidence but upheld the respondent’s claim of cruelty, dissolving the marriage and granting her custody. The appellant was ordered to pay ₦75,000 monthly for the maintenance of his ex-wife and the children. Dissatisfied, the appellant appealed the decision to the Court of Appeal.
DECISION OF THE COURT
The Court of Appeal, in a unanimous decision, dismissed the appellant’s appeal, holding that it was unmeritorious. It upheld the trial court’s decision. The court awarded custody of the children of the marriage to the respondent, reaffirming that the child’s welfare outweighs the financial or emotional claims of either parent. The court held:
…what the children need is not a mere endowment policy and a 5-bedroom apartment. The appellant’s aunt cannot take the place of their mother. The antecedents of the appellants reveal it all. It will amount to negation of well-settled principles that the welfare and interest of the child or children of the marriage must be accorded paramountcy, were an order of custody of the children of the marriage be made in favour of the appellant based on a cosmetic arrangement.
WHAT IS CHILD CUSTODY?
Child custody determines the legal rights and responsibilities of parents towards their children after divorce. Both parents naturally have equal rights, but when a marriage dissolves, the court decides how those rights will be exercised in the best interests of the child.
In Nwosu v Nwosu (2012) 8 NWLR (Pt. 1301) 1 at 32, paras F-G, the court referenced Black’s Law Dictionary,[1] which defines custody 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….”
Although multiple factors influence the court’s decision in awarding custody, the best interest of the child remains the most crucial consideration. In Oduche v. Oduche (2006) 5 NWLR (Pt. 972) 102 at 121, paras F-G, the court held that the welfare of the child is of paramount importance and will override any other consideration. The court held thus:
When deciding the issues of custody, the trial Judge exercises a judicial discretion and in exercising that discretion, he should take the following factors into consideration: these are the ages of the children, education, welfare and general upbringing, the arrangement made for their accommodation, the conduct of the parties to the marriage. Indeed, the interest of the children at all times should be of paramount consideration.
LEGAL BASIS OF THE “BEST INTEREST” PRINCIPLE
This principle is firmly established in Nigerian law. Section 1 of the Child Rights Act (2003) makes the best interests of the child the paramount consideration in every matter concerning the child, stating as follows:
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 authority of the court in custody proceedings is anchored in Section 71 of the Matrimonial Causes Act (1970). Section 71(1) explicitly enshrines the principle of the child’s best interests as the guiding consideration in all such decisions, stating:
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.
The courts have reinforced this position in several cases. In Hayes v Hayes (2000) 3 NWLR (Pt. 648) 276 at 296, para G, where Nzeako, J.C.A. expressed, “In my respectful view, its essence is to ensure that no parent, or party to matrimonial proceedings dares trifle with, or politicizes the interest and welfare of any child, no matter what personal interest or personal hurt of the parent or party.” See also, Damulak v Damulak (2004) 8 NWLR (Pt 874) 151 at 169, paras D-H, and Anyaso v Anyaso (1998) 9 NWLR (Pt 564) 150 at 176, paras H-F.
CHALLENGES OF THE BEST INTEREST PRINCIPLE
- Ambiguity and Risk of Judicial Bias
The “best interest” principle lacks a standard definition or precise mode of application, leaving it open to judicial discretion, and interpretations may vary from one court to another. As a result, personal values, cultural perspectives, or unconscious biases may influence decisions, leading to inconsistent outcomes.
- 2. Emotional and Financial Strain
Due to the unpredictable nature of this standard, custody disputes are often prolonged and become more adversarial. This not only prolongs litigation but also intensifies emotional stress for both parents and children, while significantly increasing legal expenses.
- 3. Potential Undermining of Parental Rights
In prioritising the welfare of the child above all else, the principle can sometimes overshadow the rights of parents. A capable and well-meaning parent may lose custody, not because they are unfit, but because the court believes a different arrangement better serves the child’s interests.
CONCLUSION
The Court of Appeal’s decision reaffirms that the best interest of the child remains the cornerstone in custody determinations. Above all other considerations, trial judges are required to prioritise what arrangement will best safeguard the child’s welfare and promote their development in a stable environment.
However, this does not eliminate the shortcomings of the principle. Its broad and undefined nature leaves room for personal interpretation, which can sometimes allow a judge’s subjective views to shape the outcome, even to the extent of denying capable biological parents custody of their children.
As custody disputes continue to evolve, the application of the best interest principle must be guided by clearer and more consistent standards. Doing so will enhance transparency, reduce unpredictability, and ultimately ensure that the principle truly fulfils its purpose of protecting the rights and well-being of children.
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[1] 8th Edition (2004) page 412