INTRODUCTION:
There is a general misconception that the courts would only grant custody of an underage child to the mother in child custody cases or dissolution of marriage cases. This belief stems from the idea that an unwavering bond exists between a mother and her child, leading to the assumption that the mother will automatically retain custody if she separates from the father. However, the court considers several factors in child custody cases to protect the child’s best interest, regardless of the child’s age.
This article will discuss instances when the courts deviate from the general social principle of granting custody to the mother.
GRANT OF CUSTODY TO THE FATHER BY THE COURT:
The court is mandated to regard the interest of a child or children as the paramount consideration for granting custody to either the father or the mother under the Matrimonial Causes Act and the Child’s Rights Act. Instructively, there is no written law or unwritten principle in the Nigerian legal system that compulsorily mandates the court to grant the custody of a child to the mother whether the child is of tender age or not and this position was given judicial approval in the case of Nanna v. Nanna when the Court of Appeal pronounced that:
“Although there is no settled rule that a child of tender age should remain in the custody of the mother, I take the view that custody of a child of the marriage came along with it, the all-important implications of the preservation and care of the child’s person, morally, physically and mentally.”
Therefore, the court only considers the facts submitted by the parties in each case to determine the proper party to have custody of the child and properly care for the child’s development and welfare. In the case of Alabi v. Alabi, the Court of Appeal provided the criteria for consideration to grant custody of a child to either parent when the court stated that:
“Thus certain relevant criteria must be considered in the determination of the welfare of the child as in this case and they include:
- The degree of familiarity of the child with each of the parents (parties);
- The amount of affection by the child for each of the parent and vice versa; 3. 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 man or woman; and
- The fact that in the case of children of tender age’s custody should normally be awarded to the mother unless other considerations make it undesirable etc.”
Although it is common and largely expected in matrimonial matters that the mother will be granted custody of the child or children, the court has exercised its discretion and granted the father custody in cases where the required criteria were argued and met. In the case of Lafun v. Lafun, the court awarded custody of the child of the marriage to the father and also refused to grant access to the child to the mother until the child attained the age of fourteen (14) years, subject to father’s consent. This was because the evidence before the court pointed to moral depravity on the part of the mother and it was not in the best interest of the child for the mother to have access to him in his formative years, since he could easily be negatively influenced by the respondent ‘s immoral conduct. It worthy to state that the act of drug abuse, absence in the child’s life, or chronic alcoholism can also be considered as one of the grounds for the court to deny the mother custody and grant custody to the father. In Okafor v. Okafor, 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. The court was particularly mindful of the fact that the child was too close to the father to be separated from him despite his young age.
The right to life of every child is equally protected under the 1999 Constitution (as amended), and any perceived threat to take away such right is not permissible in any form, even when it comes from the mother of the child. In the case of Kolawole v. Kolawole, the court denied a mother custody because she had previously attempted to kill the child. In the case of Oyelowo v. Oyelowo, the court granted the father custody of the two (2) male children of the marriage, aged ten (10) and nine (9), simply because of their gender. Although the father had also shown his capacity and competence to care and provide for the children, the Court of Appeal agreed with the principle established by the trial court that in the Nigerian context, boys need to join their father’s family, to which they rightly belong. For context and proper understanding, the trial court granted the father custody of the two (2) male children for the reason provided below:
“As male children, their rightful and natural place is the father’s home. It does not matter how long they stay away from it, they will one day long for it. I think it will be in their own interest if they get familiar with the locality and environment of their father’s home before it is too late for them to be regarded as part of the family of their own father. I think they should be allowed to grow there so that they may not in future be regarded as strangers there.”
In Olowoofoyeku v. Olowoofoyeku, the trial court granted the father custody of the children and even denied the mother from having access to the children. The Court of Appeal reversed the decision of the trial court and granted the mother access to the children but maintained that the father shall have custody of the children. Furthermore, in Ojeniran v. Ojeniran, the court granted custody of a boy of three (3) years old to the father because there was unchallenged evidence that the mother was not taking good care of the child.
In summary, there is no doubt that the court can grant custody of the children to the father in the event of any separation between the father and the mother. However, certain criteria such as those explained above must be met for the court to exercise its discretion in favour of granting the father custody.
GRANT OF CUSTODY TO A THIRD PARTY BY THE COURT:
The Matrimonial Causes Act empowers the court to grant custody of the children to a third party when the court is convinced that neither the father nor the mother is competent enough to properly care for and provide for the children. Section 71 (3) of the Matrimonial Causes Act provides that:
“In proceedings with respect to the custody of children of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.”
Our firm once handled a case where the father had deserted the mother, and the only child from their relationship lived with his mother. However, the mother failed to enrol the child in a school till the age of seven (7) years and continued to lock the child in a single room without letting anyone have access to the child. We were instructed by the mother’s sister, and based on our application to the court, it ordered the Social Welfare Department to take custody of the child and enrol him in a school with a proper medical check-up conducted on him. The court further granted the mother’s sister custody of the child based on the concern and care she had shown toward’s the child’s welfare.
CONCLUSION:
There is no doubt that the misconception that the court automatically grants custody of underage children to the mother upon the dissolution of a marriage is not supported by any law or principle under the Nigerian legal system. However, while the general social rule is that a child of tender years is best catered for in the custody of the mother, this rule will only be applicable where the mother is of an unimpeachable character and the court has found that the interest of the child would be best served with the mother. Therefore, the court will not hesitate to grant custody of a child to the father where the evidence on record shows that the father would be in a better position to protect the development and welfare of the child.
Please note that this article is for general information only. We do not offer it as advice on any particular matter, whether legal, procedural or otherwise. If you have questions about this article, please contact the authors at e.ogundipe@abdu-salaamabbasandco.com and foa@abdu-salaamabbasandco.com.