Most times in our society the solution to our vagaries of challenges may be around us but hardly do we know them. The reason is very simple; they do not appear in the form recognizable. Unfortunately, I know of families that almost cut themselves in pieces as a result of this.
On the issue of custody of a child born out of wedlock, there could be various answers to it. It is one of the things not envisaged in our various statutes. You cannot claim that it falls within the ambit of the Matrimonial Causes Act, in which case, the law has answered the question as to who has custody of a child born out of wedlock.
At present, there is handful of judicial authorities to it. However, I would draw your attention to the fact that our various traditional societies have different answers to it. While doing this, let us keep the following questions in mind:
→Do you think a father can take the custody away from the mum?
→Can a parent stop a child from seeing the other parent?
→Who do you think has custody of a child if there is no court order?
→How does custody of a child determined if there is no marriage?
Now, consider this scenario; two love birds (boy and girl) have every fun for themselves. Unfortunately for them, the boy impregnates the girl but the duo was not ready for marriage. The guy who may not have any reasonable means of livelihood decides to disappear, leaving the girl with the child. This particular girl fought so hard to raise the child, only for the guy to wake up one day to claim that the custody of the child should be awarded to him. In your right mind, who do you think should truly have the custody of the child?
The second scenario goes thus: Two lovers who are desirous of being with each other decide to cohabit. At that point the relationship was all rosy, and everyone was happy. They flex themselves and do everything married people do; yet, they were not married neither customarily nor under the Act. Unfortunately for them too, a child came in unexpectedly. However, their relationship went soar and they decided to part ways. Both the girl and the guy lay claim to the custody of the child. Who is entitled to the custody of the child?
Under the Igbo customary law, it is nothing much to talk about that the custody of every child rests on the woman’s father who in turn transfers same to the man who pays the bride price of the woman. Hence, you are most likely in those days to see situations where a man who pays bride price of another lady takes the custody of that child as against the child’s natural father. The reason is very simple; in the Igbo traditional society, great value is usually attached to bride price. In fact, it is even a taboo to see a girl give birth in her father’s house. Of course you know that this, to a great extent is against natural justice, equity and good conscience.
When civilization creeps into our various societies, a lot of believes started fading away. In fact, people could then go to court to challenge the various cultures on the ground that the culture is against natural justice, equity and good conscience; it being against public policy; and it being contrary to extant laws.
In one of those cases, court frowns at situation where the paternity of a child is given to one who pays bride price as against the interest of the natural father.
Today, it matters not whether the bride price of the woman is paid or not, the paternity is to the natural father, and the custody is also to him but not absolute. If the man who acknowledges the child to be his and has reasonable means of livelihood, the custody of the child will always be awarded to him. However, even if he acknowledges the child to be his but cannot be seen to take good care of the child, the custody of the child will be awarded to the mother. The reason is to protect the interest of the child, that is, the child’s best interest. This notwithstanding, either of the parents of the child is allowed access to the child. So, we must keep it in mind that anyone can have custody of a child born out of wedlock today. But the court in determining who does that must have recourse to the child’s care. Whoever that can reasonably take care of the child has custody. Where the two can reasonably do that and there is no compelling reason to the contrary, then the custody is to the father of the child. However, the other parent must be given access to the child where necessary.
Written by: Eze Gabriel .C.
Facebook page: Eze Gab Chikwado
Twitter handle: Gab.C.Eze
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