Joint Custody in Nigeria: Balancing Parental Rights and the Best Interest of the Child

CONTRIBUTOR: FAVOUR SOMTO NWACHUKWU

INTRODUCTION

Custody disputes remain one of the most emotionally and legally complex areas of family law in Nigeria. With increasing rates of separation and divorce, Nigerian courts are frequently called upon to determine which parent should have primary responsibility for the child. Central to these decisions is the “best interest of the child” principle, which aims to ensure the child’s welfare, stability, and emotional development.

While the law recognizes joint custody as a potential arrangement, its practical application in Nigerian courts has often been limited. Cultural expectations, logistical challenges, and judicial discretion frequently result in sole custody awards, typically favoring the mother for younger children. This article examines the legal framework for joint custody in Nigeria.

MEANING OF CHILD CUSTODY

There is no definition for the term “custody” in the Matrimonial Causes Act (MCA)^[1] or the Children’s Rights Act (CRA)^[2]. According to the Black’s Law Dictionary, custody^[3] 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 (care-giving authority), and an order of custody usually grants both rights.

Essentially, custody refers to the legal rights and responsibilities a parent has in relation to a child. It includes the authority to make major decisions affecting the child’s welfare, such as those concerning education, religion, and medical care.

TYPES OF CUSTODY

• Physical Custody: This refers to the parent with whom the child ordinarily resides and with whom they spend the greater part of their time.
• Legal Custody: This refers to a parent vested with legal custody is empowered to make significant decisions that affect the child’s welfare and overall development.
• Sole Custody: This is an arrangement in which one parent is awarded exclusive physical custody and exclusive legal custody of the minor child.
• Joint Custody: Joint Custody In a shared custody arrangement, each parent has equal authority over their child’s upbringing and care, as well as equal physical access. ^[4]
• Split Custody: which assigns physical custody to one parent while the other makes all significant decisions, shared custody necessitates collaboration from both parents.^[5]
• Third Party Custody: This is a temporary custody where one parent is guaranteed the child’s custody and control while the court makes a final determination about custody arrangements.^[6]

POWER OF THE COURT TO HEAR AND ADJUDICATE CHILD CUSTODY MATTERS

In Nigeria, the dissolution of marriage, questions of custody, and matters relating to the maintenance of children are principally regulated by the Matrimonial Causes Act and the Child’s Rights Act. These statutes impose a mandatory obligation on the court to treat the best interests and welfare of the child as the paramount consideration in the determination of custody and related issues.

In particular, Part IV of the Matrimonial Causes Act makes provision for maintenance, custody, and settlement of property, and expressly vests jurisdiction in the High Court of each State of the Federation and of the Federal Capital Territory to hear and determine custody matters arising from matrimonial causes.^[7]

Section 71 of the Matrimonial Causes Act provides as follows:

“71. (1) 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.

(2) The court may adjourn any proceedings within subsection (1) of this section until a report has been obtained from a welfare officer on such matters relevant to the proceedings as the court considers desirable, and any such report may thereafter be received in evidence.

(3) 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.

(4) Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage, or by the parties or a party to the marriage, as the case may be”

In matters not based on matrimonial causes, The Child’s Right Act empowers the Family Court to make orders for child custody. This can be seen in Section 69 of the Child Rights Act, which provides as follows:

“69(1) The Court may –

(a) On the application of the father or mother of a child make such order as it may deem fit with respect to the custody of the child and the right of access to the child of either parent, having regard to –

(i) The welfare of the child and the conduct of the parent, and

(ii) The wishes of the mother and father of the child”

The above quoted provisions clearly give courts with jurisdiction the power to make orders granting child custody.

The Act further confers upon the courts the authority to make such orders as they deem just and appropriate with respect to the husband, the wife, and the children of the marriage.

In Nwosu v. Nwosu^[8] the Court of Appeal held that in regard to custody or up-bringing of a minor, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and exercisable by either without the other. That is why, for example, a parent cannot recover custody of a child from the other parent by a writ of habeas corpus.

See also the case of Williams v. Williams^[9] where the Supreme Court held that if the order is for the custody or upbringing of a minor, a mother shall have the same rights and authority as the law allows to a father and the rights and authority of mother and father shall be equal.

CONSIDERATIONS GUIDING THE COURT’S EXERCISE OF DISCRETION IN THE AWARD OF CHILD CUSTODY.

WELFARE OF THE CHILD

The foremost consideration in awarding custody is the welfare and best interests of the child.^[10] Where either party to the divorce demonstrate to the Court that granting custody would not serve the child’s best interests, the Court shall duly consider such evidence , 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.^[11] The Court in Okobi v Okobi^[12] held that:

“By the provision of section 71(3) of the Matrimonial Causes Act, a court can grant custody of a child to even a person who is not a party to the marriage because the interest of the child is the paramount concern of the court in a dispute over custody of a child. So if the interest of the child will be best served by granting custody to another person, the court will so direct”

The nature and weight of the evidence presented shall inform the Court’s determination, which is exercised with broad discretion to render such orders as it deems just and appropriate.^[13]

Courts have also established criteria for determining what is in the child’s best interests. In Oduche v. Oduche^[14] Court of Appeal held that:

“When deciding the issue of custody of children of a marriage, the trial court exercises a judicial discretion and in exercising that discretion it should take the following factors into consideration i.e.(a)the ages of the children(b)education(c)welfare and general upbringing(d)arrangements made for their accommodation(e)the conducts of the parties to the marriage. However, the interest of the children at all times should be of paramount consideration.”

This means that the court will grant custody to a party who can demonstrate the ability to provide for the child’s physical and mental well-being and sound education. The party seeking custody must also show the other party’s inability to meet these needs.^[15]

AGE

The age of the child is also considered in custody decisions. It is established that a child’s tender age does not automatically result in custody being awarded to the mother. In Otti v. Otti^[16], the court held that:

“In according the child’s interest paramountcy in custody cases what the court will consider include the following:(a)the fact that there is no settled rule which says that a child of tender years should remain in the custody of the mother;(b)the care and supervision that the mother who is not out at work can give to little children is an important factor;(c)it is right to regard as a general principle/hat a boy of eight years is, on the whole, ceteris paribus better off with his father.[Williams v. Williams (1987) 2 NWLR (Pt.54) 66 referred to].

The Court may award custody to the mother where it is determined to be in the child’s best interests; however, no statutory provision mandates such an outcome. Custody determinations are made based on the specific facts and circumstances of each case. Although it is commonly assumed that a daughter will be placed with the mother and a son with the father, no law prescribes this rule, and the child’s welfare remains the controlling consideration in all cases. In Nzelu v. Nzelu^[17] the court in emphasizing the above point stated that:

“I must confess that I was initially of the view that only the son who was nine years old at time of trial should be given to the father while the girl remained with the mother on the ground that the father will be better able to discipline the boy. But on further consideration I am of the firm view that the custody of both boy and girl should be given to their father, so that they could grow together to know themselves as brother and sister. I also agree that access should be given to their mother, the respondent, to visit them at the appellant’s house at reasonable times.”

See also the case of Alabi v. Alabi^[18] where the court of Appeal stated that:

“In arriving at the decision, I am persuaded by the general principle that children who are female and in their growing or formative years like Elizabeth, is on the whole, other things being equal better off with the mother. Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539. “On the basis of foregoings, I hereby grant the 1st respondent/ cross-petitioner’s prayer for an order granting custody of the only child of the marriage, Elizabeth Oyeronke Alabi to her, until the child attains the age of 16 years. The petitioner is however granted access to the child at reasonable time in the day”Now learned counsel for the appellant had argued strenuously that there was no evidence on the part of the respondent to warrant the grant of custody and that the learned trial Judge considered extraneous matters in this direction.

Furthermore, the Court of Appeal in Alabi v Alabi^[19] also considered factors determining who should have custody and held as follows:

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;
• 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 ages custody should normally be awarded to the mother unless other considerations make it undesirable etc.

PARENTAL CARE AND ACCESSIBILITY

It has also become a trite principle of law that the conduct of a party claiming for custody is a major consideration. The Supreme Court per Obaseki JSC (as he then was) further held in the case of Williams v Williams,^[20]

“The Welfare of an infant although the first and paramount consideration is not the sole consideration and the conduct of the parties is a matter to be taken into account.

Essentially, the party petitioning for custody must establish a record of exemplary character and may also demonstrate misconduct on the part of the opposing party. While evidence of the other party’s unfitness may suffice, it is generally preferable for the petitioner to substantiate their own history of unimpeachable conduct.^[21]

It is generally believed that girls should be in the care of their mothers whilst boys their fathers.^[22] There is, however, no rule of law which buttresses this belief hence courts are not bound to adhere to this rule of thumb. It is believed that the best interest principle will suffice in this respect.^[23] In Dawodu v. Dawodu^[24], the Court refused to grant custody to a mother who had no home of her own or private means to bring up the child because it was not in the best interest of the child to do so.

The important point remains that the outcome of child custody disputes largely depends on the facts of each case as well as the evidence placed before the Court. Similarly, the Courts have also pronounced on the guiding principles and considerations for a child born out of wedlock. In Muojekwu v Ejikeme,^[25] the Court of Appeal provided a guiding principle on the custody of a child borne out of wedlock. It was held in the above case that:

“The Custody of any child born out of wedlock follows that of the mother in the absence of any person claiming custody of the child on the basis of being the natural father. Refer to Ben Enwonwu v Spira (supra) at p. 223. This must be so since the child must belong to a family and should not be rendered homeless for a situation he did not create.”

In examining why the court can grant joint custody, see the case of Theresa Temitayo Williams v. Rasheed Ahmed Williams^[26] 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.

CONCLUSION

Joint custody in Nigeria is ultimately guided by one overriding principle: the welfare and best interest of the child. This approach helps to avoid the emotional harm that may result from excluding a parent from a child’s life and encourages a more balanced upbringing, minimizing the risk of the child experiencing the negative effects of parental absence. In doing so, the law consciously disregards factors such as tribe or religion, concentrating solely on the arrangement that best advances the child’s overall welfare and development.

While custody is often granted to one or both parents, the courts retain the discretion to place a child in the care of another suitable party where it better serves the child’s interests. Through this child-centered approach, the legal framework seeks to ensure that every custody decision prioritizes protection, stability, and the overall development of the child above all else.

REFERENCE

1. 1970 ↑
2. 2003 ↑
3. (8th Ed., 2004) ↑
4. https://nji.gov.ng/assets/publication/Divorce-Maintenance-and-Child-Custody-under-the-Customary-Law-2.pdf ↑
5. supra ↑
6. Febisola Okwueze V Paul Okwueze (1989) 3 Nwlr Part 109 Page 329. ↑
7. Section 2 (1) of the Matrimonial Causes Act ↑
8. (2012) 8 NWLR (Pt. 1301) 1 ↑
9. (1987) 2 NWLR (Pt. 54) 66 ↑
10. Section 71(1) of the Matrimonial Causes Act ↑
11. Section 71(3) of the Matrimonial Causes Act ↑
12. (2020) 1 NWLR (Pt. 1705) 301 (P. 329, paras. F-G ↑
13. Odusote v. Odusote (2012) 3 NWLR (Pt. 1288) 478 ↑
14. (2006) 5 NWLR (Pt. 972) 102 (P.121, paras. F-G) ↑
15. Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 ↑
16. (1992) 7 NWLR (Pt. 252) 187 (P.210, paras. A-C) ↑
17. (1997) 3 NWLR (Pt. 494) 472 ↑
18. (2007) 9 NWLR (Pt. 1039) 297 ↑
19. supra ↑
20. Ibid 9 ↑
21. ibid ↑
22. AKINMOSIN v. AKINMOSIN (2023) LPELR-61125(CA) ↑
23.  E.I. Nwogugu, Family Law in Nigeria, supra, n. 10 at p. 268. ↑
24. (1976) 7-9 CCHCJ 201. ↑
25. (2000) 5 NWLR (Pt. 657) 402 at p. 426 paras A-B ↑
26. (1987) 2 NWLR 253 ↑