By Popoola Ayodele

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Under a statutory marriage, custody decisions hinge on the “best interests of the child,” not solely on who initiates the divorce. Custody of children usually has its twists and turns as we have seen occasions of the children being split amongst parents, all the children assigned to the custody of the mother or father as the case may be. Custody may also be granted to such responsible persons other than the parents of the child or children if circumstances demand so. Some legal practitioners offer diverse opinions on the issue.
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In Nigeria, the type of marriage shape divorce and child custody differently. Statutory marriages, under the Matrimonial Causes Act, require court proceedings for divorce, focusing on the child’s best interests for custody, often favoring mothers for young kids but assessing both parents’ fitness without strict bias. Customary marriages, rooted in ethnic traditions, dissolve through family or community mediation, with custody typically leaning toward fathers in patrilineal groups (like Yoruba or Igbo) unless they’re unfit, reflecting lineage priorities over maternal roles. Islamic marriages, governed by Sharia in northern states, end via pronouncements, granting mothers custody of young children (boys under 7, girls until puberty) while fathers retain guardianship, balancing religious rules with practical care.

Under a statutory marriage, custody decisions hinge on the “best interests of the child,” not solely on who initiates the divorce. For instance, a petitioner’s reasons for wanting to leave the marriage could indirectly affect custody of children if they reflect on their fitness as a parent and where the petitioner cites spousal abuse or neglect by the respondent and provides evidence, it could strengthen their custody claim by showing the other parent’s unsuitability. Conversely, if the petitioner’s grounds (e.g., infidelity or abandonment) suggest instability or moral failings, the court might question their ability to prioritize the child’s welfare.

The court examines factual circumstances—living conditions, financial capacity, and parental conduct—rather than penalizing one party for seeking divorce. In practice, Nigerian societal norms (e.g., favoring maternal care for young children) and judicial discretion play huge roles. Therefore, custody chances depend on evidence of their caregiving ability, not just their desire to exit the marriage as the reasons, behavior and circumstances peculiar to the petition can influence the court’s view of parental fitness.

Determining child custody in divorce proceedings involves a combination of legal principles and factual considerations, which vary by jurisdiction. The overriding principle globally is akin to the Matrimonial Causes Act and Child’s Rights Act which means that the courts prioritize the child’s welfare, safety, and development over parental preferences. The custody decisions are made by High Courts empowered to make orders regarding custody, maintenance, and education, focusing on the child’s well-being.

However, evidence of abuse, neglect, or inability to provide (financially or emotionally) can disqualify a parent. Nigerian courts assess moral character and which parent can offer a stable, safe environment, housing schooling and healthcare. Where the child is mature (typically over 10-12, per the Child’s Rights Act), their wishes may be considered, though not binding.

Moreso, Nigerian society often emphasizes extended family involvement. Grandparents or relatives may influence or even take custody under customary arrangements if both parents are unfit.

Finally, courts assess evidence like witness testimony, financial records, living conditions, etc, and apply the “best interests” test. Outcomes range from sole custody (one parent) to joint custody (rare but growing in urban areas) or third-party custody like the grandparents.

The issue of child custody in divorce proceedings is one of the most sensitive and complex aspects of family law. Courts are tasked with making decisions that will significantly impact the lives of children, and as such, they must carefully consider various legal principles, statutory provisions, and judicial precedents. The primary consideration in any custody determination is the best interests of the child, a principle that has been enshrined in both domestic and international legal frameworks. 

The best interests of the child standard

The best interests of the child is the cornerstone of custody decisions. This principle is recognized globally, including under Article 3 of the United Nations Convention on the Rights of the Child (1989), which mandates that in all actions concerning children, their best interests must be a primary consideration. In Nigeria, this principle is reflected in the Child Rights Act (2003), which provides that the welfare of the child shall be the paramount consideration in any matter involving a child. Judicial interpretation of this principle can be seen in cases such as Williams v. Williams (1987) 4 NWLR (Pt. 63) 71, where the court emphasized that custody disputes must be resolved based on what serves the child’s emotional, educational, and physical well-being. 

Factors considered in determining custody

Several factors are considered when determining custody, and these may vary slightly depending on jurisdiction. However, common considerations include the child’s age, the emotional bond between the child and each parent, the ability of each parent to provide for the child’s needs, the stability of each parent’s home environment, and the child’s own wishes (if the child is of sufficient age and maturity). In Ogunnaike v. Ogunnaike (2010) 5 NWLR (Pt. 1186) 159, the court held that the primary caregiver—usually the mother, especially for young children—is often favored unless there are compelling reasons to the contrary. 

Another critical factor is the mental and physical health of the parents. Courts will assess whether a parent has any history of abuse, neglect, or substance abuse that could endanger the child. In Adeleke v. Adeleke (2013) LPELR-20367(CA), the court denied custody to a father with a history of violent behavior, emphasizing that the safety of the child is non-negotiable. Similarly, the financial capacity of each parent is considered, though it is not the sole determinant. A wealthy parent may not automatically be granted custody if the other parent, though less affluent, provides a more nurturing environment. 

Courts may award sole custody, joint custody, or shared custody, depending on the circumstances. Sole custody grants one parent primary responsibility for the child, while the other may have visitation rights. Joint custody allows both parents to share decision-making responsibilities, even if the child resides primarily with one parent. Shared custody involves the child spending substantial time with both parents. The preference for joint custody has grown in recent years, as seen in Oloyede v. Oloyede (2019) LPELR-47663(CA), where the court encouraged co-parenting arrangements unless there is evidence that such an arrangement would harm the child. 

In some cases, the child’s preference may be taken into account, particularly if the child is older and mature enough to express a reasoned opinion. However, this is not absolute, as courts will still assess whether the child’s choice aligns with their best interests. For instance, in Okafor v. Okafor (2014) LPELR-23013(CA), the court considered a 12-year-old’s preference to live with the father but ultimately ruled in favor of the mother after evaluating other welfare factors. 

Legal and Judicial Discretion

Judges have wide discretion in custody matters, guided by statutes and precedents. However, this discretion must be exercised judiciously. In Eze v. Eze (2015) LPELR-26070(CA), the appellate court overturned a custody decision because the trial judge failed to properly evaluate all relevant factors, demonstrating that judicial discretion is not absolute and must be based on substantial evidence. 

On conclusion, determining child custody in divorce proceedings requires a delicate balance of legal principles and factual assessments. The overriding concern is always the child’s best interests, evaluated through factors such as parental capability, emotional bonds, stability, and sometimes the child’s own wishes. Courts must ensure that their decisions promote the child’s welfare while respecting the rights of both parents.

The term ‘custody’ in Family Law, is simply put as care, control, shelter, guidance, maintenance, and preservation of a child awarded by a court to a responsible adult.

It also includes responsibility for a child in regard to his needs, food, clothes instruction, etc.

With respect to the custody of the children during divorce proceedings, the court regards the interest of the children as the paramount consideration to wit: guardianship, welfare, education, health, advancement, stability as well as mental, physical, psychological and moral development.

However, considerations such as the emotional attachment to a particular parent; mother or father, or opportunities for proper upbringing matters that may affect the determination of who should have custody.

Furthermore, either of the parents could take custody of the child having considered some relevant factors in the interest of the child such as the age and sex of the child, accommodation and general upbringing of the child as well as the conduct of the parent in question.

The fact that a child is of a tender age does not necessarily mean that its custody will always be granted to the mother. Much depends on the circumstances of the case where it is abundantly clear that the mother suffers from moral misconduct, infectious diseases, insanity, lack of reasonable means, or when the mother is cruel to the child; these prevailing circumstances deprived the mother of the same

It is generally believed in the Nigerian context that a mother should be awarded custody of a child as a rightful person with proper care. Nevertheless, there is no rule or principle of law in that respect which the court is bound to observe.

One of the most sensitive parts of a divorce proceeding is the custody of children from the union sought to be dissolved. it is a difficult task for the Judge, parents, and children alike, as children are not mere chattels to be split but whole human beings, and custody can go a long way to affect their welfare and general well-being.

Custody of children usually has its twists and turns as we have seen occasions of the children being split amongst parents, all the children assigned to the custody of the mother or father as the case may be. Custody may also be granted to such responsible persons other than the parents of the child or children if circumstances demand so.  Curiously, it is not unusual to find parents without the capacity to fight for custody as well in other to get at the other party. The children are then left hanging and have to surrender to the pronouncement of the Court. One thing is clear, however, that both parents naturally have rights to access and custody of the child before the Court’s pronouncement on the same.

Specifically, the law recognizes different types of custody that can be pronounced and employed by the Courts depending on the circumstances of each case. These are namely: divided custody; split custody; joint custody; temporary custody, and third-party custody.

The Courts, in making this all-so-important decision, in determining who takes custody in divorce proceedings, are mindful of the best interest of the child vis a vis a number of considerations; age and sex of the child,the wishes of the child, education and religion, conduct of the parties, adequacy of arrangement for the child, medical and psychological factors.

It cannot be overemphasized that the best interest of the child trumps and should trump every other consideration with respect to the custody of the child at the time.

The incidence of divorce proceedings in Nigeria continues to be on the rise with grave implications on the emotional and psychological stability of the issues from the erstwhile marriage. While divorce proceedings always end with the severance of the marriage, one of the key issues that come consequentially is the determination of the custody of the children of the marriage. 

One of the key consideration in determining custody is the best interest of the child. This principle is enshrined in Section 71(1)-(4) of the Matrimonial Causes Act 1970 and the legislation is very clear that in granting custody, guardianship, advancement and education of the child, the court shall primarily consider the best interest of the Child before making such order. 

This is further buttressed in Section 1 of the Childs Right Act which is to the effect that in every action that concerns the child, the court will first of all consider the best interest of such child. This position also aligns with Article 3 of the United Nations Conventions on the Right of the Child (UNCRC) and requires courts to prioritize the child’s physical, emotional, and psychological well-being over parental preferences.

However, in determining the best interest of the child, the court will factor in several circumstances and the peculiarities of each case. One of such factors is the age and sex of the child. It therefore follows that a child of young and tender years are often presumed to be better off with their mother, subject to supervening circumstances and this position is rebuttable.

This position finds judicial footing in the case of Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539). However, where evidence establishes that the mother is unfit for the purpose of taking care of the child in the tender years, custody will revert to the father. The court also considers gender-specific needs, although there is no strict rule to that effect. Another factor that the court considers is the preference of the child.

A child approaching sufficient age and maturity may have his preference considered by the judge in chambers. This is also established in Williams v. Williams (1987) 2 NWLR (Pt. 54) 66. Further, it suffices to mention that the court considers the conduct and fitness of the parents.

As such, if there is evidence of abuse, history of neglect and immorality or mental incapacity, such can disqualify the parent from being granted custody- Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 350. The emotional attachment which a child enjoys with either of the parents also contributes to the factors the court considers in determining the best interest, coupled with the financial standing of the party seeking custody and his /her capacity to cater for the financial needs of the child.

Another consideration that comes to fore is the educational and welfare opportunities which is available to the child from either of the parents, and the cultural & religious upbringing which the child is bound to enjoy in the event of granting custody in the event of granting one. Having considered these factors, the court could grant joint or divided custody, or sole custody as the case may be. Conclusively, child custody which is predicated on the best interest of the child is determined by the circumstances surrounding each case with their peculiarities.