CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA

A. Introduction

 

This edition of Akintunde Esan's Legal Illumination is written with the plight of parents battling with the issue of child custody in mind. Who will the Court grant the custody a child or the children after going through the pains and trauma of a divorce or a separation.

Thus, the focus of this legal illumination is the  factors  the Court will consider in awarding custody to one of the parents whether married or unmarried; or married but separated; and whether the child custody is sought for with or without a divorce.

B. Who is a Child

 

The African Charter on the Rights and Welfare of the Child defined a child as “every human being below the age of eighteen years”.The United Nation’s Convention on the Rights of the Child of 1989 defines a child as a person below the age of eighteen years except in the law applicable to the child, the age of majority is attained earlier.  Nigeria ratified the CRC in 1991 and domesticated it in 2003. 

The Constitution of the Federal Republic of Nigeria does not define who a child is. However , the Child Rights Act which has been domesticated in some States  defines a child as “a person under the age of eighteen years” and defines the “Age of Maturity” as the age at which a person attains the age of eighteen years.

 

C. The Paramount Consideration  

The paramount consideration in award of child custody is the interest of the children. 

D. The General Considerations

 

(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father. 

(2) In regard to 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 and exercisable by either without the other. 

(3) Nor is there necessarily any rule that mother has a paramount claim as against other relations, at any rate where the father is alive and support the application of those relations.

(4) The welfare of the 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. 

(5) The adultery of a party is not necessarily reason for depriving that party of custody unless the circumstances of the adultery make it desirable. 

(6) All the circumstances must be considered. 

(7) The fact and advantages of brotherhood and sisterhood must also be considered when there is more than one child of the family and it is proposed to give custody of one child to one person and another to a different person. 

8) There is settled rule that a child of tender years should remain in the custody of the mother, but obviously the care and supervision that a mother who is not out at work can give to little children is an important factor. 

(9) In dealing with the questions of custody or access the court will have regard to the particular circumstances of each case always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of a spouse for misconduct. 

(10) The wishes of an unimpeachable parent stand first. 

11) Where both parents appear to be equal to the task of maintaining the children and are ready to give affection and proper guidance to the children. It was held that the interest of the male child who is 14 years old will best be served by granting custody to the father who will naturally be able to provide strong guidance for the teenage boy. 

12) Regarding the female child, where both parents are eminently qualified, able and anxious to give affection and proper guidance to their child for whom they are responsible; they are likely to co-operate and swallow their vanity in the interest of the welfare of the child because of the affection they have for the child. There can be no real objection in this circumstance for an order for joint custody.

13) In general, under most systems of customary law in Nigeria the father of a legitimate child or legitimated child has absolute right to custody of the child. However customary law recognises that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child.

Application for Child Custody without filing for Divorce 

Apart from seeking for child custody in a divorce proceedings in Nigeria, application for child custody can also be made to the Court with the requisite jurisdiction without filing for divorce.

Application for child custody without filing for divorce is legally required to be made to one of the following:

(a)   The High Court; or

(b)   The Magistrate Court ; or

(c)   The Customary Court 

The appropriate Court to apply to depends on whether the parents are married or unmarried and the nature as well as the status of the marriage, if they are married.

Conclusion

Where two elephants battle, the innocent grasses on the battle field  are unconsciously destroyed. As you fight the battle for the custody of your child or childern think of their future. In case  you need more legal illumination on the custody of your child or children in Nigeria, you may contact Akintunde Esan, the writer this legal illumination or Ase Olodumare Chambers.

Authorities:

• Williams v. Williams (1987) NWLR(Pt. 54) 66
• Uzochukwu v. Uzochukwu (2014)LPELR-24139(CA) 
• Re A, an infant (1959) C.L.. 950(1959) Times March 25th C.A.
• Re L (infants) (1962) 3 All ER. 
• Wakeham v. Wakeham (1954) 1 AllER 434 CA at 435. 
• Re B. (an infant) (1962) 2 All ER872
•  W v. Wand C (1968) 3 All ER 408 
• Re O. (infants) (1971) Ch 748(1971) 2 All ER 744 CA at 746, 752. 
• Re Thain, Thain v. Taylor (1926)Ch 676
• Mckee v. Mckee (1951) AC 352,366;(1951) 1 All ER. 942, 949 PC 
•  Okwueze v. Okwueze (1989) NWLR(Pt.109) 321

CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

Click to view :  

LEGAL ILLUMINATION ON CHILD AND WIFE MAINTENANCE IN NIGERIA 

GROUNDS FOR GRANTING DIVORCE IN NIGERIA

You can also contact Akintunde Esan of Ase Olodumare Chambers for Legal illumination and  Guidelines on CHILD ADOPTION IN LAGOS STATE.

Breaking News ! DIVORCE MEDIATION IN NIGERIA

DIVORCE MEDIATION

The Initiative Conflict is an inevitable part of human relationships, in most cases the very differences that make us unique individual are also the very sources of potential conflicts. A conflict not resolved on time has the potential to degenerate into violence, death, loss, injustice, insecurity, separation or divorce. This makes me to be very delighted to present to you Ase Olodumare Chambers (AOC) Divorce Mediation Initiative. This is an Initiative to forestall a divorce, where it is obviously evitable and to facilitate a peaceful and amicable divorce or separation where divorce is evidently inevitable.

AOC Focus The focus of Ase Olodumare Chambers (AOC) Divorce Mediation Initiative is to: 1.     Facilitate: An amicable resolution of divorce cases pending in the Court. An amicable and peaceful divorce or separation of couples with irreconcilable differences. An amicable and peaceful severance of marital relationship of couples not formally married but contemplating the severance of their marital relationships An amicable resolution of child custody disputes. 2.    Encourage Consultation by: Spouses contemplating filing a divorce in the Court. Spouses not formally married but contemplating the severance of their    marital relationships. Spouses who have pending divorce proceedings in the Court. Couples who have child custody disputes

For Whom Spouses who are seeking for an amicable and peaceful separation or divorce. Spouses who are contemplating filing for divorce or separation in Court. Spouses having issues on child custody. Spouses who are not formally married but are seeking for amicable and peaceful severance of their marital relationships.

Our Mediators AOC Mediators are professional Mediators who are seasoned Legal Practitioners with proper grasp of Nigerian Family Law.

Akintunde Esan Managing Partner/Principal Consultant ASE OLODUMARE CHAMBERS Legal Practitioners/Consultants & Chartered Mediators No.5, Musa Akor Close, By Akin Osiyemi Street, Off Allen Avenue, Ikeja, Lagos. Tel:        +234 (0)7039856215 Mobile:  +234 (0)8073828487 E-mail:    info@aseolodumarechambers.com Website: www.aseolodumarechambers.com     Blog: Akintunde Esan’s Legal Illumination   Click to also view: GROUNDS FOR GRANTING DIVORCE IN COURT IN NIGERIA CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA

LEGAL ILLUMINATION ON CHILD AND WIFE MAINTENANCE IN NIGERIA

Introduction

This edition of the Legal Illumination of Akintunde Esan is focused on how to obtain an order of Court to compel a father refusing to be responsible for his child’s upkeep and school fees to be responsible by obtaining a maintenance order against such a father. It also focuses on the circumstances under which a wife can get an order of maintenance from the Court.

Maintenance Order

A maintenance order in this Legal Illumination is the order of Court compelling:

a)    the father or guardian of a child to pay certain amount periodically or at once for the upkeep of the  child, this may include the expenses for feeding, education, accommodation, medical bills and other necessaries. 

b)   the husband of a woman married under the Marriage Act to pay certain amount periodically or at once for the upkeep of the woman, this may include the expenses for feeding, accommodation, medical bills and other necessaries.

A maintenance order is usually made by the Court in a suit for divorce or child custody or maintenance or the three combined in one suit as a trinity suit. It should be noted that in a suit where you do not file for all of the three the Court would only grant what you filed or prayed for as the Court is not known to grant what is not prayed for except in exceptional cases.

The Maintenance of a Child

Every child has the right to Right to parental care, protection and maintenance and the child has the right, in appropriate circumstances, to enforce this right in the Family Court. However, the right to maintenance by his parents or guardians is subject to the extent of their means.[1]

In answering the question on whose is the responsibility to pay for the upkeep or maintenance of a child, Alagoa, J.C.A in Tabansi v. Tabansi (2008) [2]  answered the question as follows:

"There is a plethora of cases on this subject matter especially by the Apex Court. The education, maintenance and upkeep of a child are serious and sensitive matters which should not be hamstrung by technicalities. What is best for the child should be the paramount consideration of the Court. The Petitioner has submitted that the upkeep of the child is the responsibility of both parents. At common law it is the responsibility of the man to take care of his family." 

The Maintenance of a Wife

The wife of a marriage under the Matrimonial Causes Act (M.C.A) is entitled to claim maintenance in the High Court, if her husband wilfully neglected to maintain her without filing for divorce or any matrimonial cause. In essence, a wife may be claimed for maintenance from her husband even if there is no pending suit for divorce or separation.[3]

The obligation of the husband to maintain his wife is a discretionary power of the Court to grant[4].It has been held that before a Court makes an order for maintenance, it must take some factors into consideration. These includes[5]:

(a) the parties income;

(b) earning capacity and by implication properties owned by each party

(c) financial resources;

(d) financial needs and responsibilities;

(e) standard of life of the parties before the dissolution of the marriage, their respective ages and the length of time they were husband and wife.

In the case of Mrs. Rose Ndibulum Enwezor v. Mr. Christopher Ifeanyi Enwezor[6], the High Court refused to grant Mrs Enwezor an order of maintenance on the ground that she was on the same salary grade with her husband and her status or standing in life was/is parallel to that of the husband.

Can a Husband claim for Maintenance from his Wife

Indeed under the English jurisdiction, the Courts have a discretion to order wives to pay maintenance to their husbands especially where a wife is in a better financial position than the husband. Thus, a husband can successfully petition for divorce and also ask for maintenance[7]. This discretion fortunately is not part of the Nigerian Law. In Nigeria, the husband is supposed to take care of his wife[8].

Payment of Maintenance from the Salary or Income of a Father or a Husband

The law permits that the upkeep, maintenance, school fees and other necessaries of a child be deducted from the salary or income of the father or guardian of a child. A maintenance order can as well be enforced by getting an order of attachment of the salary of the father or husband who has refused to comply with the order.

Conclusion

I am of the school of thought that, it is not in the overall interest of a child for a parent to initiate contempt proceedings that would end in the other parent been imprisoned in the name of enforcing a maintenance order or judgment. It is better to explore other statutory options of enforcing such a judgment or order and the attachment of salary or income is just one of such options. 

In case you need further legal illumination on child or wife maintenance or both you may contact Akintunde Esan (the Legal Adviser Online).

---

[1] Section 14 Child’s Right Act

[2] LPELR-4365(CA) (Pp. 20 paras. C)

[3] Per Ikyegh ,J.C.A (Pp. 30 paras. A) Obajimi v. Obajimi (2011) LPELR-4665(CA)

[4] Nanna v. Nanna (2006) 3 NWLR Pt.966 page 1, Erhahon v. Erhahon (supra) Olu-Ibukun v. Olu-Ibukun (1974) Supreme Court of Nigeria Judgment.

[5] Negbenebor v. Negbenebon (1971) 1 All NLR page 210, Ibeawuchi.Per  Ndukwe-Anyanwu ,JCA (Pp. 17-18, paras. C-A) Okaome v. Okaome & Anor (2016) LPELR-41460(CA)

[6] Per Hussein Mukhtar ,JCA (Pp. 22-23, paras. C-D) Mrs. Rose Ndibulum Enwezor v. Mr. Christopher Ifeanyi Enwezor & Anor (2012) LPELR-8544(CA)

[7] Calderbank v. Calderbank (1975) 3 WLR page 586.

[8] Per Ndukwe-Anyanwu ,JCA (P. 19, paras. A-C) Okaome v. Okaome & Anor (2016) LPELR-41460(CA)

Click to also view: 

CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA