Factors The Court Would Consider In Granting An Order For Child Custody To A Parent
Guided by the Child’s Right Act, 2003 and the Matrimonial Causes Act, the Courts, in deciding custody matters are usually more concerned with the welfare of the child as a whole and this includes: day-today care of the child, guardianship, moral upbringing, physical development and mental care, as well as advancement of education, to enable the child live a balanced life. Taking all the above into consideration, where a parent can afford to give a child a life of milk and honey and nothing more, does that alone entitle the parent to custody of the child? Does the welfare of a child not go beyond the financial capacity of a parent? Beyond providing for the child’s basic material needs, should such a parent not be investigated to ensure that he or she is capable of raising that child in a responsible manner?
The Best Interest and Welfare of the Child are the Guiding Factors
In the case of Alabi v. Alabi (2007) LPELR-CA/IL/2006, the Court of Appeal listed certain relevant factors that must be considered in the determination of the welfare of the child, and these include: (1) the degree of familiarity of the child with each of the parents; (2) the amount of affection the child has for each parent; (3) the respective incomes of the parties; (4) education of the child; (5) the fact that one of the parties now lives with a third party either as a man or woman; and (6) the fact that in the case of children of tender age, custody should normally be awarded to the mother unless other considerations make it undesirable.
Furthermore, in the case of Theresa Temitayo Williams v. V. Rasheed Ahmed Williams (1987) 2 NWLR 253, Karibi-Whyte, J.S.C held as follows:
‘’…It is now well settled that in proceedings with respect to the custody of children the Court shall regard the interests of the children as of paramount consideration. The determination of the welfare of a child is a composite of many factors. Considerations 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. What the court deals with is the lives of human beings and ought not to be regulated by rigid formulae. All the relevant factors ought to be considered and the paramount consideration being the welfare of the child. By paramount consideration, I mean pre-eminent and superior consideration. In Re L (infants) (1962) 3 All ER. 1, it was held that “paramount” does not mean exclusive. So regard should be had to considerations other than the predominant factor.’’
In deciding a custody lawsuit, financial capacity of a party is not the only determinant factor to be considered by the Court, as financial capacity together with other factors which includes the age of the child, how responsible the party is and availability of the party to take proper care of the child would be considered holistically. This is because the law is commonplace that where an action involves a child, the best interest of the child is primarily considered above all other factors. See: section 1 of the Child’s Rights Act, 2003.
In the case of Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1, the Court of Appeal held that custody of the children of the marriage could not be granted to the father (Appellant) even though he gave evidence that he had the financial resources to provide an education endowment trust for the children and also provide accommodation for them in a 5-bedroom house. Instead, the Court of Appeal granted custody of the children to the mother (Respondent) because she was able to provide evidence showing that she was responsible for taking care of the children’s need and spending time with them.
Also, section 71 (1) of the Matrimonial Causes Act provide as follows:
In proceedings with respect to the custody, guardianship, welfare, advancement or education of 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. (emphasis supplied)
Both Parents Have an Equal Right to the Child
In a child custody matter, the claim of one parent cannot be considered or regarded as superior to that of the other parent, as custody matter is not for retribution or a way to mete out punishment to a party; rather, the child’s interest remains the utmost and paramount factor which inspires the Court’s decision. Although, under most system of customary law, the father of a legitimate child has absolute right to custody of the child see: p.260 of Family Law in Nigeria by E.I. Nwogugu., the Courts would not hesitate to depart from this position where it will be detrimental to the welfare and the best interest of the child if custody of the child is awarded to the father since the customary law position is inconsistent with the provisions of the Child’s Rights Act.
It is instructive to state that in most cases, the Customary Court of Lagos State usually refers the issue of custody of a child to the Magistrate Court for resolution and the Magistrate Court would always be guided by the provisions of the Child’s Right Law of Lagos State, 2007 in arriving at a decision on which of the parties to grant the custodial right of a child.
Can the Court Grant an Order for Joint Custody of a Child to the Parents?
Although the Child’ Right Act provides that where custody of a child is granted to a parent, the other parent would be granted regular access to the child, it is not unusual for both parents to apply for the joint custody of the child where they both have the capacity to raise the child.
This issue came up for the consideration of the Supreme Court in the case of Theresa Temitayo Williams v. Rasheed Ahmed Williams (1987) 2 NWLR 253 where the Supreme Court granted the Appellant and Respondent, joint custody of their daughter since both parents were eminently qualified, able and anxious to give affection and proper guidance to their child for whom they are responsible. The Court also held that the parents were likely to co-operate and swallow their vanity in the interest and welfare of the child because of the affection they have for the child.
Would the Court Always Grant Custody of a Toddler to the Mother?
The general rule is that custody of a child of tender age would normally be awarded to the mother unless there are other considerations, which makes it undesirable for the Court to award custody of the young child to the mother. Based on this general rule, mothers are usually in a better position to be awarded custody of their child, but there have been a few instances where the Courts have awarded custody of a child of tender age to the father.
One of such instances is the case of Mrs. Mayowa Aderonke Ojeniran v. Mr. Joshua Femi Ojeniran (2018) LPELR-45697(CA), where the Court of Appeal upheld an award of the custody of a child of three (3) years old to the father who was the Respondent in the appeal. In the course of the trial at the High Court, the father gave an unchallenged evidence that he was denied access to his child and that the child was being brought up carelessly by his mother. He also gave evidence that the mother would send him photographs of the child eating substandard meals and she would go ahead to tell him that the child wasn’t receiving adequate care. He concluded his testimony by stating that his estranged wife was now in a new relationship with another man whom she was living with and that the child would not receive good care in the house of another man. The Court of Appeal held that the High Court was correct to have awarded custody of the child to the father, as there was nothing on record to show that the father would be incapable of taking care of the child since “male children are better off with their father.”
It is therefore clear from the case of Ojeniran v. Ojeniran that the mere fact that the child of the marriage is a minor is not conclusive proof that custody of the child would be granted to the mother. Indeed, the social rule that a child of tender age is best catered for in the custody of the mother will only operate where the mother is of unimpeachable character.
It is important for parents not to allow their differences to affect the general wellbeing of their children by allowing good reason and conscience to prevail when deciding on which of the parents should have custody of their children, as the issue of custody cannot be determined alone based on the financial capacity of a parent or based on the tender age of the children.
Children require the complementary care of the two parents even where the parents are separated or divorced, as it is psychologically disadvantageous to their wellbeing and ultimate happiness if a parent deliberately prevents the other parent from playing a significant role in the upbringing of the children due to the misunderstanding between the parents. This position was adopted by the Court of Appeal in the case of Olowofoyeku v. Olowofoyeku (2011) 1 NWLR (1227) 117 at 203 Paragraphs D-W where the Court held that “efforts must be made to ensure that children are not denied the love, care and affection of either parent”.
Finally, no two lawsuits are the same and the Courts would always decide each lawsuit based on the peculiar facts and circumstances of the lawsuit, whilst paying attention to the paramount wellbeing and interest of the child.