Who is Granted Custody of a Child Born Out of Wedlock?

Custody

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?

Scenario A

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?

Scenario B

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;
and
(c) in every case, make such order with respect to costs as it may think just.

Decided Cases

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.

Conclusion

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

39 comments on “Who is Granted Custody of a Child Born Out of Wedlock?”

    1. We are happy you enjoyed it. Visit every Saturday for new posts and vote from Sunday to Wednesday(Facebook) / Thursday(Twitter) for the topic you want to read next Saturday. The aim is to educate, inform and enlighten

    2. How in the hell can a father just take a baby from a mother because he wants to be a dad .
      An leave the mother with no say so .
      Who is making up these laws .
      The one and only main reason that a father is going to step up and want his child anyway that he had out of wedlock which means he never probably wanted a family so we don’t have to pay child support so y’all let a baby up root from its mother just to favor an unwed father that’s out screwing and having babies with everybody over some child support can I get the name judicial branch the house to Representatives that’s our voting on this s*** because it is absolutely ridiculous then they need to be paying the medical bills and everything else right along with it

  1. Really detailed and interesting to read. The laws surrounding this issue are nuanced and can be hard to follow across different sections of the society, but the last section of the article clears it up. Thanks.

    1. You’re very welcome
      In an effort to preserve the customs of various tribes and cultures, application of the law has become largely subject to the interpretation of the court.

      1. This is really interesting and enlightening to read. Never knew any of this. Please am a victim of such case and really need a lawyer to take up the case. Destiny – +2347036885482

  2. A nice piece. Good work.
    In other words, it means that a man who denies a pregnancy but comes back for the child would likely be denied custody but not access. What if by some weird, irrational stroke, the man had signed in writing that he is not the father of the child in a bid to deny the pregnancy, could he be denied custody as well as access on the basis of that written denial?

    1. I would love to read the response to your question. Kindly tag me when you get a response please.

      T for Thanks 🤗

    1. I have a child aside wedlock during my service year, but I have been taking care of this child under the custody of the mother, but now that family has denied me access to him but still demands his school fees and upkeep money from me. In this case, what should I do, please it’s very urgent. Thanks

      1. Hmm, really interesting reality.

        My love for this subject though, following the rising cases of the likes in our society presently.

        Tag me as well pls, would love to see follow-up comments and responses on this.
        Thanks

        1. Please I need advice ,I have a baby boy out off wedlock and we have been leaving together until she started leaving a wayward life and even initiates a treat on me for thevfact her father is a native dector.Now am not longer interested I want her to leave my house.Is it my responsibility to rent for an apartment for her? please I need your advice.

  3. Quiet a lengthy piece but an amazing read worthy of the time spent reading.
    Thanks girl for the detailed explanation with samples cases. This is very educative🤗🤗

    1. I had a child out of wedlock. The last time I saw him was wen I was 5 month pregnant . I have been the only one taking care of My child is almost 2 years now we haven’t set our eyes on him. In this case what can I do. I want to take full custody of my child cause in the future they should not come and claim what they didn’t sow

      1. I have a child of wedlock who is about six months now and his father sends a little amount of money whenever he wishes buh I don’t want this to make him be the one to have my son, please what’s the best option or should I live him. Will love to discus more and know what’s next. Thanks love ur teachings.

        1. Thank you for your comment. We will send an email to you to further address your issue. Kindly look out for it.

  4. Please I need advice ,I have a baby boy out off wedlock and we have been leaving together until she started leaving a wayward life and even initiates a treat on me for thevfact her father is a native dector.Now am not longer interested I want her to leave my house.Is it my responsibility to rent for an apartment for her? please I need your advice.

    1. Good day Charles, as a parent you are legally responsible for the welfare of your child until they reach the age of majority which in Nigeria is 18 (eighteen) years.

  5. I have a child out of wedlock, I want to responsible for my child and do not intend to separate him from his mother. My issue is that my child doesn’t bear my last name because we’re not married which breaks me. I have been there through the the thick and thin, pregnancy, delivery, even passed night at the hospital. I wasn’t even invited to my child’s naming like the her father is trying to claim my child because he doesn’t have a male child.
    What can I do about this because I want my child to have identity and I want to there for him.

    1. Good day, kindly check your email. We just sent an email to your mailbox. Thank you for reaching out.

  6. Please I have a daughter that I have been there for right from the day her mother conceived her till the day she was born, we weren’t married but we were living together and I was taken care of everything till she broke up with me and I was the one taken care of the child alone till she came back and take the child to start living with her dad and also change my daughter surname from my name to her dads name, I have been paying school fees and monthly allowance unfailing every month and school feel when due but still yet I am being denied access to my daughter and her mom won’t allow her to even come spend her holidays with me but always needing money, pls I need help

  7. Good evening, my name is ehis, there’s this lady I thought could be my wife and we had 2 beautiful daughters outside wedlock but I have traveled from Lagos to warri to see her dad, her mum lives in Lagos, this woman refused to be submissive and don’t want to listen to me, she argues at anything even if she’s wrong. I even helped her get a job in a bank just with her (nabteb) result which is just like (waec) with my connections, she works with graduates and earn same salary with them but shes never grateful for the little things i try to do for her and her family. Anytime we have a little issue, she’ll carry my 2 beautiful daughters out of my house saying they are her children. I’m so tired of this whole thing and I don’t know what to do, whether to opt out and allow her carry my daughters away of which I know she will not be able to take care of them financially or maybe I should take my daughters and allow her to leave. Please I need advise seriously about this issue

  8. Good afternoon my name is princely, there’s this lady I thought could be my wife and we had 1 daughter outside wedlock, I stood by her during her pregnancy and after delivering. I make sure she’s okay. I gave her money to do business. She was living with her parents because I wasn’t around which made her parents to milk dry me. My baby mama parents denied me access to my daughter which lead us having issues. My daughter is just 3 years plus.
    The issues on ground now is that my baby mama got married to another man. How will I take custody of my daughter? because I will not allow my baby mama to handle my daughter to her parents while I’m still alive

  9. Good evening
    I need your help, out of wedlock I had 2 kids with who I call my ex now, before now we were living together as family in good times and hard time. Along the line she was not faithful enough, she was cheating with other men, I tried to make things work out, by making her understand that am trying my best to work hard for the family which she knew my hard working skills, finally she decide to leave which I still pleaded for the sake of the kids, I guess her mind was made up, she was not working as at then, on this faithful day she came convincing me that she want to take the kids to her parent home for Christmas, that was the last time I saw the kids, I kept on calling her to know the problem but no concrete excuse until I went to her parent home and pleaded for them to come back home but to no avail. I did all I could to convince her that things will get better, but nothing turns up well. This got me weak and ill for the love I have for my kids, I almost lost my life with depression, during this time I never knew she already went ahead to be with another man with a new born baby. The saddest part is that, her family came with a bad news that my first child is dead. Am still in shock, they didn’t let me take care of my kids, now they sent me the picture of my first late child. As I speak with you they brought my son to me which is my second child and they won’t let me breathe, they want to have my second child by all means again
    Pls help me, I am helpless right now. I don’t want to loose another child again. My son is my happiness.

    Thank you and I await your response

  10. Good morning… pls help me o. My relationship with my baby daddy started over 10 yrs ago. We have an 8 yr old daughter. Not like he denied her, but has chosen to be irresponsible up till date. His reason is that I refuse to let her be with him that I’m hiding her away from him, so for that he wouldn’t take care of her expenses. In 2015 before I had her, he only gave 10k til date he hasn’t given any other dime, doesn’t call but always emotionally blackmailing me that I refuse to give him access to her. How can I do that when he wasn’t there for us when we needed him the most amidst all the pains and hardship I’ve been facing raising her alone.

    I have been fending for her with the help of my family. I keep having arguments with him every now and then cus he’s always on and off on us, disappearing and reappearing.

    Now she’ll be done with basic school next year and I’m not yet financially stable, been thinking a lot on how to go about her future expenses in high school.

    He is my first love, But I still don’t know why I love this guy even after all I’ve been through, I know I’m stupid, pls don’t judge me.

    I feel like I should do his own bidding so the financial burden and stress will be less on me.

    Pls help, I have really suffered and sacrificed a lot already. I feel so sad and depressed occasionally.

  11. Am glad i found this page, I have a child out of wedlock to a Nigerian US citizen, this is his second marriage with no child, he agreed to marry me and establish me after I given birth, all that changed when I finally had my baby, he made her passport which automatically makes her a US citizen, though we are not married am afraid he will one day want to take my child away from me to his wife that is unable to conceive and live together as family. Am really afraid about this, pls I need help,

Leave a Reply

Your email address will not be published. Required fields are marked *