DIVORCE: RIGHT TO CUSTODY AND MAINTENANCE OF CHILDREN IN NIGERIA

ABSTRACT

The welfare and protection of children are central concerns in family law. Issues of custody and maintenance often arise when parents separate, Divorce, or are otherwise unable to live together. The guiding principle in both areas is the best interest and welfare of the child, which supersedes the rights and interests of the parents. This seminar examines the legal framework governing custody of children and maintenance obligations in Nigeria, with special attention to the rights available to women. It traces the sources of law (Matrimonial Causes Act, Child’s Right Act 2003, Customary and Sharia Law), explains the controlling legal principles, most importantly ‘’the best interest of the child” rule, analyzes how courts approach custody and maintenance disputes, and surveys leading Nigeria cases and enforcement mechanisms. The paper concludes with practice and policy reform to better protect children and mothers in the context of Divorce.

INTRODUCTION

The family unit is the foundation of society, and the welfare of children is a primary concern in both law and morality. However, when disputes arise between parents, especially during Divorce or separation, the question of who should have custody and who should provide maintenance becomes central. Custody of children refers to the legal right and responsibility of a parent to care for, control, and make decisions concerning the upbringing of a child. In Nigeria, custody issues typically arise in Divorce, separation, or when unmarried parents dispute over a child’s welfare.

The law governing custody in Nigeria derives from mixture of statutory law, case law, and customary/religious laws, depending on the parties involved. In many states customary law or Sharia personal law also influences outcomes. The overriding test across jurisdictions is the welfare (best interest) of the child as recognized under Nigeria law and international conventions such as United Nations Convention on Right of Child and African Charter on Rights and Welfare of the Child.

2. 2. CUSTODY OF A CHILD
3. meaning and concept

In Divorce one critical decision is Child custody. The child custody after Divorce in Nigeria primarily rests on the best interest of the child.

Generally, Custody is a care, control of a person while in Black Law’s Dictionary: Authority to make significant decisions on a child’s behalf.

Custody refers to the legal right to take care of a child, including decisions concerning upbringing, education, and welfare. It includes both:

Physical custody – actual possession and day-to-day care of the child (which is care giving authority).

Legal custody – authority to make decisions regarding the child’s life and welfare (decision making authority).

2a. DIFFERENCE BETWEEN CUSTODY AND GUARDIANSHIP

Custody: it is the care, control maintenance awarded by the care to a responsible parent (biological parents of the child) whereas legal guardianship is granted to someone who is not the child’s biological parents. Divorce can complicate this dynamic, especially in matters of custody and maintenance.

The major role of guardian is act in the best interest when the child’s parents cannot do so.

2b.  CHILD’S CUSTODY

Black Law’s Dictionary: custody of children is care, control and maintenance of a child which may be awarded by a court to one of the responsible parents. Section 71 of Matrimonial Causes Act:  provides in the proceeding with respect to custody, guardianship, which advancement or education of the children of the marriage, the court shall regard the interest of those children as paramount consideration.

There is no stated rule of what constitutes interest of a child, it depends on the circumstances of each case

Theresa Williams v. Ahmed Rasheed Williams: the determination of the welfare of a child is a composite of many factors. Consideration such as emotional attachment to a particular parent. The inadequacy of the facilities such as educational etc. for proper upbringing.

Typical of attitude of the courts is the statement of Oputa, J. in Okafor V. Okafor that in all cases for the custody of a child, the ‘’paramount consideration, in fact the condition precedent is the welfare of the infant’’. Thus, a parents may not be deprived of custody merely because of his or her conduct which might have contributed to the breakdown of the marriage. In short, the court’s discretion must not be exercised as a punishment for one party or a reward for the other party see Afonja v. Afonja

Custody equally means where the care, control and maintenance of a child is awarded to a relative usually one of the parents or responsible Adult.

3. SOURCES OF LAW
4. Constitution of the Federal Republic of Nigeria (1999 as Amended) such as section 17(3)(f) of the 1999 constitution: which imposes actionable obligation on Nigeria government to ensure that children are adequately protected from moral & material neglect.

Section 18(3a-f) of the Federal Republic of Nigeria (1999 as Amended): children should be entitled & given free and compulsory education. But unfortunately, section 6(6)(c) makes it non-justifiable and unenforceable.

1. Child’s Right Act (2003)- it establishes the welfare/best-interest principle and rights of the child to protection and maintenance.

iii. Matrimonial Causes Act: it deals with governing divorce, custody and maintenance order the court may make.

1. Case law: judicial decisions interpret statutory and customary provisions and set controlling factors for custody/maintenance determinations.
2. Customary Law & Sharia Law: specifically, in many parts of Nigeria, personal/custody matters are decided under customary or Islamic personal law, which may produce different presumptions (For example, certain customary rules about paternal preference). Courts however will subordinate customary/religious practice to the child’s welfare when necessary.

Vi. International Conventions: United Nations Convention on Right of Child (1989) and African Charter on Rights and Welfare of Child (1990)

(Vii). Under the Guardians and Wards Act, 1890

Section 17: In appointing a guardian, the court must consider the minor’s welfare, age, sex, and religion.

Section 19: The court cannot appoint a guardian if the father is alive and not unfit.

WHO IS A CHILD

Black’s Law Dictionary: defines a child to be a person under the age of majority

John Okoye V. State:  a child is a young person at formation period of life

United Nations Convention on Rights of Child: A human being below the age of 18 years.

Children and Young Person’s Law: defines a child as person under the age of 14years (young person as one who has attained 14years and is under the age of 18years)

Child’s Right Act 2003: describes a child as a person under the age of 18years

5. THE MAJOR PRINCIPLE THAT GOVERNS THE RULE OF CUSTODY

The basic principle is the best interest of the child which is pertinent and paramount. Both the Matrimonial Causes Act and the Child’s Rights Act emphasize that welfare of the child is paramount. When courts decide custody, they balance parental rights against the child’s welfare and consider many factual factors

Six ingredients in determination of custody

Welfare of the child see section 71(1)  of the MCA

Both parents have equal right (father & mother), issue of custody is not determined by gender

It is a legal right and not natural right

Custody matters are not permanent, it is subject to review

Separation of parents is not automatically harmful

Financial capacity is considered but not a sole factor.

 Factors To Be Considered Before Granting of Child Custody to Parties

Age & sex of a child: there is no laid down principle that a child will be in the hands of the woman because of age of the child but the court considers based on the circumstances of the case. See Oyelowo v. Oyelowo the trial Judge granted custody of two male children aged 10 and 9, respectively, to their father

Wishes of the child: it is paramount especially, when he/she is of age (majority) the court will interview privately to know his or her wishes.

Education & religion: the court pay attention and give consideration to the advantages and disadvantages of any arrangement for education and religion of the child.

Conduct of the parents: a parents may not be deprived of custody merely because of his/her conduct which may have led to breakdown of marriage

Adequacy of arrangement for the Child: the party must establish that there are accommodation, welfare, education, upbringing and other arrangements of the child. See Dawodu v. Dawodu : custody was granted to father on ground that the mother has no home.

Medical and psychological factors:  if custody of a child has been with a particular parent the court may order for him/her to remain with the child he/she has already be taking care of

Emotional attachment of the child: the child may be too much attached and gotten use to a particular parent having stayed with he/her for long time.

Nationality of the parents: the court does not discriminate where Nigeria or not the paramount is welfare of the child.

Courts may award custody to mothers or fathers depending on which arrangement best secures the welfare of the child.

DISCRETIONARY POWER OF THE COURT IN ISSUE OF CUSTODY

Section 71(2) MCA gives court the court the discretion to” make such order in respect of the custody, guardianship, welfare, advancement or education of the child as it thinks fit’’. It is however, important that the discretion must be exercised judicially and judiciously. ordinarily the exercise of discretion by a trial court will not be reviewed by an appellate court unless it can be shown that such discretion was exercised arbitrarily or illegally or that extraneous factors were taken into consideration. the role of welfare officer in custody cases section 71(1) MCA provides that: the court may adjourn until report has been obtained from welfare officer. The report should cover all aspects of life and welfare of child.

TYPES OF CUSTODY

Physical/Actual Custody: where court gives care and control to one parents and decision ranging from daily care and upbringing are left to parent. In this case the parents have both physical custody and assumed to have legal custody as well.

Divided Custody: where a child lives with each parent part of the year with reciprocal visitation privilege, each parent shares the physical custody part of the year. At the time the child is in custody of one, the parents have right to make decision for the child.

Sole Custody: court gives parental rights to one person

Split Custody: the court grants legal custody to one parent but care and control or physical custody to the other parents.

Joint Custody: (both parents share both physical and legal custody where they share both decisions making

Temporary Custody: custody is awarded to a temporally parents pending the outcome of a separation or divorce

Third party Custody: where the court places the child under the custody of a third party who is not a party to the marriage either permanently or as interim measure.

Things the court will consider before granting third party

1. Neither of the parents are not interested in the upbringing of the child
2. Neither of them has applied to court for custody

iii.  Neither of the parents are fit and proper person for custody as considered by the court.

In granting award of custody to a third party, once the court considers the both parents unfit and proper then the custody will be awarded to a third party. See Okwueze V. Okwueze

Generally, under Customary Law custom of a child belongs to father because children are considered as part of his lineage. However, Morden courts have subordinated this rule to interest and welfare principle which is paramount.

UNDER SECTION 69 OF MATRIMONIAL CAUSES ACT

Defines a child of marriage for custody as

1. Child adopted since marriage (after contraction of marriage both adopted) by husband or wife with consent of each other.
2. Child born before contraction of marriage by either of them legitimate or not
3. Any child of husband or wife, illegitimate child or not adopted by one of them. If at relevant time the child has been ordinarily a member of household shall be deemed not be child of the marriage.

Therefore, under the Act the position of Customary or Common Law will not apply custody outside wedlock, the most important thing is interest of the child.

8. MAINTENANCE OF A CHILD
9. Meaning and Scope

Any child below the age of 21 years automatically is entitled to maintenance under the provision of MCA. It may be made in favour  of a child above 21years in exceptional circumstances. The order court may make is welfare support, education advancement among others. Maintenance includes food, clothing, shelter, education, and other necessities required for a child’s physical and mental development. The obligation to maintain a child arises from both personal laws and statutory provisions.

An unmarried couple seeking for maintenance may come with Child’s Right Act or Child’s Right Laws of various states. The domicile of parties is not required but residence in that state is important while married couple not seeking divorce but maintenance can come through Child’s Right Act.

9. COURT DISCRETION IN ISSUE OF MAINTENANCE

The power of the court to make maintenance orders is contained in section 70 of the matrimonial causes Act, which has four criteria: the means, earning capacity, conduct of parties to marriage and all other relevant circumstances. However, the discretion has to be exercised as required by law, judicially and judiciously.

In Ibeawuchi V. Ibeawuchi, the Court of Appeal in dealing with the making of maintenance orders referred to the income, properties owned by each party and financial resources as the party’s income. It also indicated that account should be taken of “financial needs and responsibilities” which are likely to affect that party’s means.

The rules of procedure required by an applicant in proceedings for maintenance, include the following information:

1. The property, income and financial commitment of the petitioner
2. The capacity of the petitioner to earn income
3. The property, income and financial commitment of the spouse of the petitioner, so far as they are known to petitioner
4. The capacity of the spouse of the petitioner to earn income.
5. Any financial arrangement in operation
6. An order of court under which one of the parties to marriage is liable to make payment to other
7. The ownership of home in which the petitioner is residing, terms and conditions upon which he is occupying it.

10. 10. CHALLENGES IN THE ENFORCEMENT OF CUSTODY AND MAINTENANCE ORDERS
11. Conflict of Laws: The coexistence of statutory, customary, and Islamic laws creates inconsistencies.
12. Non-domestication of the Child’s Right Act: Not all states have implemented the Child’s right Act, limiting its applicability.
13. Weak Enforcement Mechanisms: Courts often lack the resources or follow-up systems to ensure compliance with maintenance orders.
14. Cultural Biases: Societal attitudes sometimes favor fathers in custody decisions, especially under customary systems.
15. Economic Constraints: Many custodial parents, especially mothers, struggle to enforce maintenance orders due to financial limitations.

11. 11. RECOMMENDATIONS
12. Uniform Application of the Child’s Rights Act: All states should domesticate and implement the Child’s Right Act for consistency.
13. Establishment of Family Courts Nationwide: Specialized courts should handle custody and maintenance matters efficiently.
14. Strengthening Enforcement Mechanisms: Maintenance orders should be backed by strict penalties for defaulting parents.
15. Public Awareness and Legal Aid: Increased education and access to free legal services will protect vulnerable parents and children.
16. Integration of Customary and Statutory Practices: Harmonizing the systems can reduce legal conflicts and promote justice.

12. CONCLUSION

Child custody and maintenance are not about parental rights but about parental duties. Courts and statutes emphasize that the best interest of the child is the supreme consideration. Judicial precedents continue to evolve to ensure that children grow in an environment that nurtures their physical, emotional, and moral wellbeing. Inconsistencies in application across different legal systems continue to undermine effective protection. Uniform adoption of the Child’s Rights Act, coupled with strong enforcement and awareness, will promote fairness and ensure that the child’s welfare truly remains the paramount consideration in all custody and maintenance decision

13. REFERENCES

Child’s Right Act (2003)

Guardians and Wards Act, 1890

Constitution of the Federal Republic of Nigeria (1999 as Amended)

Customary Law & Sharia Law

Women and Minority Law

Protection of Women from Domestic Violence Act, 2005

African Charter on Rights and Welfare of Child(1990)

Matrimonial Causes Act Cap M7, Laws of Federation of Nigeria 2004

United Nations Convention on Right of Child (1989)

E.l. Nwogugu: family law in Nigeria(Third Edition)

Chinwe Patricia Iloka, ph.D: Contemporary Issues in Women and Minority Rights Law in Nigeria.

Sagay .l: Nigeria Family Law Principles,Cases, Statute’s  & Commentaries

Leading Cases:

Theresa Williams V. Ahmed Rasheed Williams(1987)2NWLR (pt.54)P. 66SC.

Angelina Ijeoma Okafor V. Samuel Maduke Okafor( High Court of East Central State (1972) Oputa J.

Afonja v. Afonja(1971) lUILR 105. 72

Oyelowo v. Oyelowo  (1987)2 NWLR(PT.56) 239.

Dawodu v. Dawodu (1976)CCHCJ 1207

Paul Okwueze V. Febisola Okwueze (Court of Appeal,Benin Judicial Division,(1985)

Alabi V. Alabi(2007) 9NWLR(pt1039)297,347

Ibeawuchi V. Ibeawuchi (Unreported)Appeal No FCA/E/5/82 of  22/9/82