Welcome to the very first edition of the Legal MythBusters section at STREETLAWYER9JA! 

Here, we attempt to discredit several misconceptions you may have about certain laws and how they operate in Nigerian society. As usual, simple words, sentences and scenarios (where applicable) are used to perfectly explain chosen topics.

Read through the topic for today with me, as it promises to be a good read!

Introduction

Primarily, when a marriage has produced children, both parents have equal responsibilities and rights over their children, including the right to nurture and raise them, right to influence and make decisions for and on behalf of their children, right to protect their children etc., as confirmed in Nwosu v Nwosu where custody was defined as:

“…the care, control, and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision-making authority) and physical custody (caregiving authority), and an award of custody usually grants both rights.”

Nwosu v Nwosu (2012) 8 NWLR Pt 1301

However, when it comes to child custody battles following the dissolution of the marriage, many people assume that the court will automatically award custody to the mother. This is a common legal myth that can lead to unrealistic expectations and unnecessary stress for families going through a divorce or separation. In reality, the court’s primary concern is the best interests of the child, not the gender of the parent.

Principle: The Best Interests of the Child

In Nigeria, the Child’s Rights Act (2003) and the Child’s Rights Law of Lagos State (2007) (and other similar laws in various states) guide the court’s decision in child custody cases. The court’s paramount consideration is the welfare and best interests of the child, as stated in Section 1 of the Child’s Rights Act: 

“In every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration.”

Section 1 of the Child’s Rights Act, 2003

This principle was reaffirmed in the landmark case of ATOMATOFA v. ATOMATOFA (2023) LPELR-60523(CA) where the court held thus:

“It is the position of the law that in determining the issue of custody in matrimonial proceedings, the welfare of the children is of paramount importance. It is also entirely at the discretion of the judge who will exercise same judiciously and judicially, based on the peculiar facts of the case and the application of the relevant law.

In exercising its discretion on the grant of custody, the Court is to consider; the health of the children, the social and financial status of the parties, religious/social opportunities, sex and age of the children, degree of familiarity between the child and parent, amount of affection between the child and parent, arrangement for education of the child, possibility of re-marriage by the parent to a third party.”

Factors Considered in Custody Battles

The court considers various factors when determining child custody, including:

1. The Child’s age and Developmental Needs: Section 12 of the Child’s Rights Act, 2003 talks about a child’s right to leisure, recreation and cultural activities. The Court will determine which of the parents will be able to provide the child with such needs that are pivotal to a child’s development.
2. The Relationship between the Child and Each Parent: The Court will also put into consideration the how the child relates with each parent. How each parent treats the child and which of the parents will be in a better position to take care of the child. (Akinbi v Akinbi (2015) LPELR-24361(CA)).
3. The Ability of Each Parent to Provide a Stable and Loving Environment: Which of the parents will be able to provide the child or children with an environment that is both stable and loving to encourage healthy growth of mind and character for the child. (Okoli v Okoli (2017) LPELR-42323(CA)).
4. The Geographical Distance between the Parent’s Homes: The Court will also consider the location of the parent’s homes. (Eze v Eze (2019) LPELR-47293(CA))
5. The Child’s Wishes (If old enough): The Court will also consider the wishes of the Child. If the child is old enough to decide, the court will also put it into consideration. Section 14 of the Child’s Right Act, 2003.
6. Any History of Domestic Violence or Abuse: The history of domestic violence or abuse of the parent toward the child, if any, will be considered by the Court and will play a vital role in determining who will be granted custody of the child. Section 11 of the Child’s Right Act, 2003 which talks about the right to dignity of a child.
7. The parents’ lifestyle, values, and beliefs
8. The ability of each parent to provide for the child’s physical, emotional, and educational needs
9. Any other relevant factors that may impact the child’s well-being.

Some other case laws to consider:

• BILYAMIN BISHIR V. SUWAIBA MOHAMMAD Unreported Suit No: KTS/SCA/KT/39/2019, where the Sharia Court of Appeal held that the child’s best interest, health, proper training, and education should be considered in awarding custody.
• ALABI V. ALABI (2007) 9 NWLR (Pt. 1039) 297, pp. 347-348, paras G-A, where the Court of Appeal considered factors such as the degree of familiarity of the child with each parent, the amount of affection, the respective incomes of the parties, education, and the fact that one of the parties now lives with a third party.

Debunking the Myth

Contrary to popular belief, the court does not automatically favor the mother in custody battles. The court’s decision is based on a thorough evaluation of the circumstances, not gender bias. In fact, the court may award custody to:

• The father (Adebiyi v Adebiyi (2016) LPELR-40664(CA))
• The mother
• Both parents (joint custody): In the case of Oladipo v. Oladipo (2017) LPELR-42564 (CA), the court awarded joint custody to both parents, with the mother having physical custody and the father having liberal access.
• A third party (such as a grandparent or guardian) (Section 7, Children’s Rights Act)

depending on who the Court in its judgement believes will be the most beneficial to the child in the case.

Conclusion

It’s essential to understand that child custody battles are not about gender but about what’s in the best interests of the child. By debunking this legal myth, unnecessary stress will hopefully be alleviated and families will be encouraged to focus on the child’s well-being. 

If you’re going through a custody battle, seek legal advice from a qualified practitioner who can guide you through the process.