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.
Position of the Law
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.
Questions to Consider
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 (Obi and Ada) are having fun. Unfortunately for them, Obi impregnates Ada. Neither of them is ready to get married and due to their Christian family upbringing are scared to get an abortion. Obi is a corper making N60,000 (Sixty Thousand Naira) only a month. Scared and frightened about the responsibility of raising a child with Ada, Obi ghosts Ada, leaving her alone with the child. Ada withstood the harsh criticisms of her family, friends and peers, taking up odd jobs in order to raise her child and is doing well for herself. One day, Obi calls Ada out of the blue and demands custody of the child on the basis that the child wouldn’t exist if it were not for his input. Ada is furious. Who do you think should truly have the custody of the child?
The second scenario goes thus: Two lovers, Segun and Biola who are desirous of being with each other decide to cohabit. Like all relationships at the beginning, it was all rosy, and everyone was happy. They lived just like a married couple under the law would only that they actually weren’t. Unfortunately for them too, a child came in unexpectedly. Thinking that this would bring them closer together and refusing to have a child out of wedlock, Segun proposes to Biola but Biola refuses on the grounds that she doesn’t want a baby to be the reason they get married. Unable to come to agree, Segun and Biola decide to go their separate ways however, they both want custody of their unborn baby. Who is entitled to the custody of the child?
Under Customary Law
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.
Under Common Law
At common law, a mother has right to the custody of a child born outside wedlock to the exclusion of the natural father of the child. For a father to be awarded custody at common law, he must sufficiently establish that the mother is unfit. See the case of Lafun Vs Lafun 1967 NMLR page 401 where the Court not only refused custody to a child’s mother but also refused her access to visit him based on the fact that she was seen as unfit in the following words;
“Owing to the moral depravity of the respondent (mother) it will not be the best interest of this child (born in 1960) for
the respondent to have frequent access to him in his formative years when he could easily be influenced. When the child attains the age of 14 years, the petitioner may allow the respondent access if he so wishes”.
Under the Child’s Right Act
Section 68 and 69 of the Child’s Right Act makes provisions for who gets custody of a child born out of wedlock.
(1) Where the father and mother of a child were not married to each other at the time of the birth of the child‐
(a) the Family Court established under section 153 of this Act may‐
(i) on the application of the father, order that he shall have parental responsibility for the child; or
(ii) on the application of the mother, order that she shall have parental responsibility for the child; or
(b) the father and mother may by agreement have joint parental responsibility for the child.
Under the CRA, this means that on application of either parent, the Family Court constituted under the Child’s Right Act will grant custody to either or both parent.
Section 69 of the CRA, explains situations where the court make orders in respect of custody or right of access to a child;
(1) The Court may‐
(a) on the application of the father or mother of a child make such order as it may deem fit with respect to the custody of the child and the right of access to the child of either parent, having regard to‐
(i) the welfare of the child and the conduct of the parent; and
(ii) the wishes of the mother and Father of the child,
(b) alter, vary or discharge an order made under paragraph (a) of this subsection on the application of‐
(i) the father or mother of the child, or
(ii) the guardian of the child, after the death of the father or mother of the child;
(c) in every case, make such order with respect to costs as it may think just.
Over the years, there have been a series of decided cases on this matter. Below are just a few of them;
In Okoli V. Okoli (2003) 8 NWLR (PT. 823) 565 @ 580, the Court of Appeal in discussing the custody of a child born outside wedlock held that the custody of a child born out of wedlock follows that of the mother in the absence of any person claiming custody of the child of being the natural father.
The case above is straightforward, where the natural father isn’t claiming custody, then the mother naturally is granted custody of said child.
The case of Owuma Vs Ogbodo (1976) 2 FNR Page 208 is instructive. In this case, both the appellant (child’s natural father) and the respondent (the mother) were lovers. A boy was born as a result of their relationship. The appellant removed the child from the respondent. The respondent’s father admitted at the trial that he received compensation from the appellant according to Idoma Customary Law as his daughter was not married to the appellant. The Area Court Grade 1 Otukpo gave custody of the child to the appellant. This decision was reversed by the Upper Area Court and a further appeal was made to the High Court where the court refused to deprive the appellant of the custody of the child who had lived for years with the appellant who had sent him to primary school from where he passed the entrance examination to a secondary school.
In the case above, the court refused to deprive the appellant (the child’s father) of custody of his son since he had not only compensated the family according to their native law and customs but had also trained him throughout primary school until common entrance.
The case of Anode Vs Mmeka (2008) NWLR Part 1094 page 1 at 5 is a pathetic one as Saulawa JCA in ratio 3 stated as follows;
“It is not in doby, as alluded to above that the custom as applicable to Umuiyi Ndiukwu Akabo community, which permits a father to keep his daughter in the family home to procreate out of wedlock, due to lack of male child, is morally, religiously and culturally obnoxious. Such a custom is repugnant to natural justice, equity and good conscience, it is antithetic to the well cherished tenets of fundamental human rights as enshrined under Chapter IV of the 1999 Constitution. The custom in question no doubt promoted sexual promiscuity in the society. And it is thus highly abominable.”
The courts refused to grant custody based on the fact that the custom relied on failed the Repugnancy test; which is for a custom to be adhered to by the Customary court, it must not be repugnant to natural justice, good conscience or equity. The above case failed all three.
Read more here.
What is Applicable Today
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 as well as other factors. This notwithstanding, either of the parents of the child is allowed access to the child.
We must keep it in mind that either mother, father or a court appointed guardian 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