Understanding Parental Rights under the Nigerian Family Law: Winning Custody of a Child After Divorce.

Who retains custody of a child is one of the vital issues for determination in divorce cases — regardless of whether the case is being litigated before the court or the parties chose to adopt alternative dispute resolution mechanisms.[1] Child custody cases are difficult to litigate because they may require expert testimony from physicians or child psychologists. It equally leaves a mental toll on both parties to the dispute. If not properly handled, it can stretch the divorce proceeding longer than intended by both parties.

What is Child Custody?

Neither the Matrimonial Causes Act nor the Child Rights Act defines Child Custody. Simply put, the term ‘custody’ refers to the legal right to keep and care for children, especially after the parents are separated or dead[2]. Usually, one parent has custody of the children, but under other circumstances, other parties may receive custodial or visitation rights.[3] Typically, the type of marriage in which children are born affects the parent-child relationship and ultimately determines custody rights in the event of separation or divorce. This article will focus on custody rights for children born in statutory marriages.

How to Win Custody of a Child After Divorce:

1.     Enforcement of Custody Orders:

In divorce proceedings involving children, the court usually considers the issues of child custody and maintenance. The primary factor for determining child custody rights is the best interests of the child. Section 7(1) of the Matrimonial Causes Act provides that “in the proceeding with respect to custody, guardianship, welfare, advancement, or education of children of the marriage, the court shall regard the interest of those children as the paramount consideration subject thereto the court may make such order in respect to those matters as it thinks proper.” Therefore, the interest of the child is the Court’s paramount consideration. Besides the interest of the child, other factors the Court will consider in granting custody orders are:

i.               The degree of familiarity of the child with each parent

ii.              The amount of affection by the child for each of the parent and vice versa

iii.            The respective incomes of the parties

iv.            Education of the child

v.              The fact that one parent now lives with a third-party companion

vi.            The ages of the children. With children of tender ages, custody should normally be awarded to the mother unless other considerations make it undesirable. [4]

Once a custody order is granted, the parent awarded custody gains custody rights. Failure by the other parent to comply with the court’s custody order constitutes contempt of court, and the court can issue a bench warrant for the arrest of the non-compliant parent.

2.     Appeal of Custody Orders:

A parent dissatisfied with a custody order made by the High Court can file an appeal to the Court of Appeal, stating the grounds for challenging the custody order. The appealing parent must present an adequate ground of appeal – which, in most cases could be that the original decision of the High Court did not adequately serve the best interests of the child or that there was a legal error in the judgment.

Types of Child Custody Orders the Court Can Make:

Custody can take on different forms. These include:

1. Physical Custody or Legal Custody: Physical custody refers to both the actual possession and the physical control of the child. Legal custody, on the other hand, is the power to make decisions on behalf of the child. Examples of such decisions include decisions relating to the child’s education, activities, and religious upbringing.  As is common in most cases in Nigeria, one person may hold both rights, or the court may divide the rights and responsibilities between the parents as it deems fit.When reaching custody decisions, the “best interest of the child” is the requisite standard.[5]

2. Joint Custody: The court has the discretion to make a decree for parents to have joint custody of the child in the best interest of the child. Here, the courts will consider whether the parents can cooperate in matters concerning the child. It is important to note that joint custody does not mean that each party will have equal rights to the child, it just means that one parent may be given the primary responsibility of living with the child. This situation is also referred to as primary physical placement.

3. Temporary Custody: This occurs during the pendency of the divorce proceedings. The child is temporarily placed under the custody of one of the parties pending the determination of the case.

4. Third-party Guardian: Other than the parents of a child, the court can, where it deems fit, grant custody of a child to a third party.[6] Again, the court will consider the interest of the child and the circumstances of the case.

Essential Requirements to Assist in Pursuit of Child Custody After Divorce:

1.     Legal representation: Engaging a skilled family lawyer is essential in your custody case. An experienced family lawyer can assist in enforcing custody orders and guide you through the necessary steps for appealing custody decisions in Nigeria, where necessary, the lawyer can assist in formulating the grounds for appeal, advise on the procedure for appeal, and assist in collating necessary evidence to support your case.

2.     Proper documentation/evidence: The evidence a party presents to support their claims determines the outcome of child custody cases. Your lawyer can help you identify the most relevant documents and information needed to strengthen your position and effectively present your case in court. This evidence could include a history of caregiving, proof of the other parent’s unfitness, report of the child welfare officer amongst others.

Conclusion

Understanding parental rights under Nigerian family law is important for anyone dealing with child custody issues after a divorce. Custody decisions are based on what is best for the child, so parents must show they can provide a safe and loving home. Factors like the child’s relationship with each parent, their feelings, and each parent’s ability to care for the child are crucial in the court’s decision.

At La Peritum Law Practice, we have the expertise to assist in enforcing custody orders and guiding parents through the appeals process when necessary. For inquiries, please email us at enquiries@laperitum.com or click here to contact us directly.

[1]Mediation and  Arbitration in Nigerian Family Law < http://isrgpublishers.com/wp-content/uploads/2024/09/ISRGJAHSS6282024.pdf> accessed 3 October, 2024.

[2] Cambridge Dictionary https://dictionary.cambridge.org/dictionary/english/custody Accessed on October 10, 2024

[3]Linda H. Connell, Child Custody, Visitation, and Support in illinois  (Sphinx Publishing, 2003) 33.

[4] Alabi v Alabi (2007) 9 NWLR (Part 1039) 297 at pages 347-348 paragraphs G-A

[5]Ibid.

[6]Eseroghene Joshua Oyitso, “The Child Custody in Nigeria: Guiding Principles and Considerations” <> accessed 3 October, 2024.