Divorce can be a traumatic experience for any family, especially when children are involved. In Nigeria, the issue of child custody after divorce is a sensitive one that requires careful consideration. In this article, we will explore the legal framework governing child custody after divorce in Nigeria, the factors that influence custody decisions, and how the process works in practice.
WHAT IS CHILD CUSTODY?
In Nigeria, the matter of child custody following a divorce is predominantly determined by the best interest of the child. The term “custody” itself remains undefined in the Matrimonial Causes Act. However, Black’s Law Dictionary defines child custody 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.”
According to Section 7(1) of the Matrimonial Causes Act, during proceedings concerning the custody, guardianship, welfare, advancement, or education of the children of a marriage, the court must prioritize the interests of the children. Following this, the court may issue orders pertaining to these matters as it deems appropriate. Determining who will receive custody of a child after a divorce hinges on several factors.
THE DIFFERENCE BETWEEN CHILD CUSTODY AND GUARDIANSHIP
The child parentage is really what makes a difference. When a kid’s parents are deceased, in prison, ill, disabled, etc., guardianship is used to grant a third party, other than the child’s parents, care, support, and control of the child. A guardian represents a parent. Parents who have custody are responsible for the child’s upkeep, care, and control. Only in unusual situations may a third party be given custody.
LEGAL FRAMEWORK FOR CHILD CUSTODY IN NIGERIA
In Nigeria, the law governing child custody after divorce is based on the Children’s Rights Act of 2003. This law recognizes the right of every child to the love, care, and protection of his or her parents, and it sets out the legal framework for determining child custody after divorce.
Under the Children’s Rights Act, the court has the power to make custody and access orders for children whose parents are divorced, separated, or unmarried. The court will consider the best interest of the child in making these orders, taking into account the factors set out in the Act. Other laws that govern child custody in Nigeria include:
- Child’s Rights Act of 2003.
- Customary Court Laws.
- Child’s Rights Law of various states.
- Islamic Court Laws.
- Section 17(3) (f) of the 1999 Constitution of the Federal Republic of Nigeria.
- Matrimonial Causes Act of 1970.
FACTORS CONSIDERED IN CHILD CUSTODY DECISIONS
When determining child custody after divorce in Nigeria, the court will consider several factors, including:
THE BEST INTEREST OF THE CHILD
This is the most important factor in any child custody decision. The court will consider the physical, emotional, and psychological needs of the child, as well as the child’s age, health, and education.
THE MORAL CHARACTER OF THE PARENT
The moral character of the parent is another factor that the court will consider when making child custody decisions. The court will look at whether the parent has a history of drug or alcohol abuse, domestic violence, or criminal activity.
THE PARENT-CHILD RELATIONSHIP
The court will also consider the nature and quality of the relationship between the child and each parent. The court will look at how involved each parent has been in the child’s life, and whether the parent has been supportive of the child’s needs. When evaluating what is in the child’s best interest, the actions of the parents involved must be taken into consideration. A parent cannot, however, lose custody just because of behaviour that may have led to the marriage’s dissolution. The court’s discretion cannot be used to favour one party over the other by punishing or rewarding them.
THE AGE AND GENDER OF THE CHILD
The age and gender of the child can also be factors in child custody decisions. For example, a young child may be better off with the mother, while an older child may have a stronger bond with the father. Even when a kid is young, the court will often give the mother custody if it is in the best interests of the child, even though this is not always the case. The court is not required to abide by any rules or principles outlined by the law. Yet, the specifics of the case will determine whether a court will adhere to the widespread notion that it is preferable to give a mother custody of very young children.
It is usually accepted that males should be cared for by their fathers, while girls should be with their mothers. Again, there is no statute that the courts are required to follow in that regard. The specifics of the case will determine this.
THE CHILD’S WISHES
Finally, the court may also consider the child’s wishes when making custody decisions. However, the child’s wishes will only be taken into account if the child is old enough to express a preference, and if the court believes that the child’s wishes are in his or her best interest. When a custody dispute arises, the judge may sometimes examine the involved kid in private, especially if the child has reached the age at which he or she is able to communicate his or her views. The opinion of the kid, however, can surface in welfare reports and will be taken into consideration. The child’s choices are often taken into consideration by the court with care since they might be influenced by his age or the influence of a parent.
SCHOOLING AND RELIGION
The positive and negative aspects of any plan for the child’s education and religion are often taken into account by the court. Religious issues have an impact on a child’s welfare, and courts want to make sure that whatever judgement is made in this regard respects the child’s best interests.
SHELTER FOR CHILD
When a party requests custody of a child from a previous relationship, that party must detail the planned plan for the kid’s living situation, welfare, education, upbringing, and other arrangements. The court can be hesitant to examine the issue of custody in favour of the party unless the party lays forth these facts. It should be underlined that just because one spouse is materially wealthy, that doesn’t always mean that they are acting in the best interests of their marriage’s children. But, the fact that one partner is significantly better off financially to raise the child and give him or her better housing might be pivotal. Also, the party that is better able to provide the kid with suitable housing may be selected.
TYPES OF CUSTODY
Depending on the facts of the case, the court may issue any number of custody orders. The child’s best interests, however, must always come first when the court is making decisions. The court may grant any of the following custody orders:
- DIVIDED CUSTODY
In this case, the child in question has reciprocal visiting rights and spends a portion of the year living with each parent. When a parent has custody of a child, that parent is in total charge of the child.
- SPLIT CUSTODY
The court in this instance gives one parent care and control and one parent custody. As a result, the parent with custody has the authority to decide on the child’s major life choices, while the other parent is in charge of the child’s daily physical upbringing. The current method is to provide one parent care and control while giving the other joint custody and the authority to make significant decisions. Without establishing a custody arrangement, the court may also award care and control to one parent.
- JOINT CUSTODY
Both parents share duty and authority for the children when they have joint custody. Both joint “physical” and joint “legal” custody may be included in this. This has the result that the kid is shared physically between the parents, and both parents are engaged in making decisions that will have an impact on the child’s life, such as those regarding their education, health, and other issues. Split custody is in contrast to this. It should be emphasised that “joint” custody does not always entail an equal or 50/50 time split because each situation is unique and relies on the child’s age, the parent’s availability and preferences, among other things. The court must be sure that the parents will cooperate before granting joint custody; otherwise, the ruling will be pointless.
- TEMPORARY CUSTODY
Here, a parent is given temporary custody of a kid while a separation or divorce is being processed. When a disagreement over the custody, guardianship, welfare, support, advancement, or education of the children of the marriage occurs during a marital case after the procedures for the major relief have been initiated, this authority may be used. In the interim until the petition’s ultimate decision, either the petitioner or respondent may submit an application for a temporary custody order. In situations of exceptional urgency or after giving the other party notice, the application may be lodged ex-parte. Prior to filing an ex-parte application or an application on notice, an oral application may be filed in circumstances of severe urgency with the permission of the court.
- THIRD PARTY CUSTODY
The child in question may be permanently or temporarily placed under the care of a third party (someone who is not a party to the marriage) where the court deems it appropriate to do so and it is in the child’s best interests.
WHO GETS CHILD CUSTODY AFTER DIVORCE IN NIGERIA?
In Nigeria, customary law generally gives the father exclusive custody rights over his legitimate or legitimated offspring. However, if the father passes away, the male head of the father’s family takes over the child’s custody, while the mother retains unrestricted control over the child’s daily upbringing. It’s essential to note that in Nigeria, customary law governs the legal rights of citizens and holds significant weight in the court of law. The father’s custody rights are upheld in customary law, and they supersede the mother’s rights in most cases.
When the father dies, the male head of the family assumes responsibility for the child’s custody, ensuring that the child is appropriately taken care of and has access to necessary resources. The mother’s authority is limited to the child’s day-to-day care and welfare, while the child’s long-term future is determined by the father’s family head.
CHILD CUSTODY PROCESS IN NIGERIA
The process for determining child custody after divorce in Nigeria can take several different forms, depending on the circumstances of the case.
In some cases, parents may be able to come to an agreement on child custody through mediation. Mediation is a process in which a neutral third party helps the parents reach a mutually acceptable agreement. If the parents are able to agree on custody and visitation, they can submit their agreement to the court for approval.
If the parents are unable to come to an agreement on child custody through mediation, they will need to go to court. In court, both parents will have the opportunity to present evidence and arguments to support their position. The court will then make a decision based on the best interest of the child and the factors outlined in the Children’s Rights Act.
Once the court has made a decision on child custody, the parent who is awarded custody will have the right to make decisions regarding the child’s upbringing, such as where the child will live, go to school, and receive medical treatment. The parent who is not awarded custody may be granted visitation rights, which will be set out in the custody order.
It is important to note that child custody orders are not set in stone and can be modified in certain circumstances. If there is a significant change in the circumstances of either parent or the child, such as a relocation, job loss, or a change in the child’s needs, either parent can apply to the court to modify the custody order.
Child custody after divorce in Nigeria can be a complex and emotionally charged issue. The legal framework governing child custody in Nigeria prioritizes the best interest of the child, and courts consider a range of factors when making custody decisions. While mediation can be an effective way for parents to reach an agreement on child custody, court proceedings may be necessary in some cases. Ultimately, the goal of child custody decisions is to ensure that children are able to thrive and receive the care and support they need after the breakdown of their parents’ relationship.
- Can the custody order be changed after it has been made? Yes, the custody order can be modified if there is a significant change in circumstances.
- Will the child’s wishes always be taken into account? No, the child’s wishes will only be taken into account if the court believes that they are in the child’s best interest and if the child is old enough to express a preference.
- Can a parent who has been abusive still be awarded custody? The court will take the moral character of each parent into account when making custody decisions, and a history of abuse may impact the court’s decision.
- Can grandparents or other family members be awarded custody? Yes, under certain circumstances, grandparents or other family members may be awarded custody if it is in the best interest of the child.
- What is the role of the court in child custody decisions? The court is responsible for making custody and access orders for children whose parents are divorced, separated, or unmarried, and it considers the best interest of the child and the factors outlined in the Children’s Rights Act when making these orders.