CHILD'S CUSTODY

There’s a presumption that the child’s custody matters in Nigeria will be decided in favor of the father, for a marriage that is statutory and comes under the jurisdiction of matrimonial causes act made it clear that the custody of the child will be decided based on the child’s best interest as provided in section 71 of the matrimonial causes act, but this does not mean that the mother of the child cannot stricto senso have the child’s custody, only that the mother must prove beyond reasonable doubt that she can maintain the child without regard to court powers to grant maintenance orders i.e. personal residence, job, income before they are given custody.

If it is in the best interest of the family that the spouse separate or divorce such as in cases involving domestic violence, the spouse granted custody should receive maintenance and support from other, but both  parents should be financially responsible for their offspring.

Also fathers that are seeking for custody of the child must prove that they can personally provide attention, care and nurture in addition to financial needs before they can be granted custody. Where the father can prove all the above but it is seen that he’s a violent drug addict or lives irresponsibly, the court shall deny such father custody, this is also applicable to a mother with such characteristics.

Generally, custody of very young children is awarded to the mother, there’s also a preference that the custody of a female child is mostly granted to the mother and that of the male is granted to the father but have it in mind that the best interest of the child is what determines who custody will be awarded to.

Another determining factor in granting custody of a child is the evidence of moral depravity against the offending party but in reaching such conclusion, the court needs to be careful so that the judge is not seen as jumping into the arena of the case. The court has been warned that custody  should not be used punitively against an erring party on whose behavior led to the grounds of divorce, if at all the erring party will be denied, the petitioner must prove that the child’s physical, mental welfare is at risk from the party’s behavior.

Oyenike Alliyu-Adebiyi LLB(hons)BL