Funmilayo Olagunju

The Black’s Law Dictionary defines custody as: “the care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding.”

Child custody is one of the reliefs sought in matrimonial proceedings and the Court is empowered to grant the custody of a child/children to a deserving person (which could be either of the parents or an adult third-party where necessary).

Generally, the nature of marriage contracted by the parents might determine the custody of a child from that marriage. Under customary law, there is a rebuttable presumption that the custody of the child belongs to the father. This position will not be enforced by the Court if it is not in the best interest of the child.

The Matrimonial Causes Act and Child Right Act are the relevant Laws that govern Child custody for Statutory marriage. Section 1 of the Child’s Right Act provides that the best interest of a Child is to be of paramount consideration in all actions.

Section 71 (1) of the Matrimonial Causes Act specifically provides:

“In the proceeding with respect to the custody, guardianship, advancement or education of children of the marriage the court shall regard the interest of those children as the paramount consideration, and subject thereto the court may make such order in respect to these matters as it thinks proper.”

The best interest of a child is determined by the Court based on the fact and merit of each case. In the case of Odusote v. Odusote (2012) 3 NWLR pt 1288 p. 478, the Court held that “the interest of the child includes welfare, education, security and overall wellbeing and development”

Child custody might be temporarily granted as an interim relief pending the final determination of a Matrimonial proceeding. After considering the merit of the case and evidence produced, the Court may order divided custody or Joint custody to both parents. Where none of the parents are fit and proper for the best interest of the child, custody might be granted to an adult third-party.

Failure to comply with the order of Court in respect to the custody of a child is an offence. The offender is liable to Committal proceedings (action taken against someone for disobedience and disruption of Court orders) which might result into imprisonment.

“Behold, children are a heritage from the LORD, the fruit of the womb a reward” Psalms 127:3