INTERIM ORDERS THAT MAY BE MADE IN RESPECT TO THE CUSTODY
According to Section 71 of the Matrimonial Causes Act, "courts shall treat the interests of the children as the foremost consideration when awarding custody of children in a matrimonial dispute according to the MCA."
INTERIM ORDERS THAT MAY BE MADE IN RESPECT TO THE CUSTODY
According to Section 71 of the Matrimonial Causes Act, "courts shall treat the interests of the children as the foremost consideration when awarding custody of children in a matrimonial dispute according to the MCA." The Supreme Court in WILLIAMS V WILLIAMS (1987) LPELR-8050 set out the principles on which custody is decided clearly;
“(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father.
The court of appeal further stated the following in Nwosu v. Nwosu (2012) 8 NWLR Pt 1301. The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.right to protect that legal interest.
In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that “Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”
A party to matrimonial proceedings can simultaneously file an ex parte motion for interim custody when filing a petition under the MCA under Order 14 Rule 23 (1)(c) which provides that; 23(1) “Where proceedings for ancillary relief have been instituted seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings , the court may in a case of urgency, hear the proceedings, and make an order in the proceedings, ex parte.”
This interim order will provide the legal basis for the applicant to retain custody of the children pending hearing of the motion on notice which will decide custody pending the resolution of the substantive suit which may be for divorce, nullity or judicial separation. The interim order will them be served together with the notice of petition and the motion on notice on the respondent.
Once a court order is obtained, the applicant receives the original copy and is free to move with the children without concern that the other party would take them away or do something else wrong (like reporting to police they were kidnapped as some parents erroneously do) The applicant has the right to stop the respondent, the opposing party in the lawsuit, from taking the kids away forcibly, and if they do, they will be in violation of the court's order.
NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com
WRITTEN BY CHAMAN LAW FIRM TEAM
EMAIL: chamanlawfirm@gmail.com
TEL: 08065553671, 08024230080