THE CUSTODY OF A CHILD UNDER NIGERIAN LAW
Black’s Law Dictionary defines 'custody of children' 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”.
THE CUSTODY OF A CHILD UNDER NIGERIAN LAW OR THE POSITION OF LAW ON CHILD CUSTODY IN NIGERIA
The child custody after divorce in Nigeria primarily rested on the best interest of a child. Black’s Law Dictionary defines 'custody of children' 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”. Section 7(1) Matrimonial Causes Act provides:
In the proceeding with respect to the custody, guardianship, welfare, 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 those Matters as it thinks proper. Who gets the custody of a child after divorce depends on a number of factors.
There is no stated rule of what constitutes interest of a child. It will depend on the circumstances of each case. Karibi-Whyte JSC in the case of Williams v. Williams (1963) UKHL 6 observed as follows:
The determination of the welfare of a child is a composite of many factors. Consideration such as the emotional attachment to a particular parent, mother or father; the inadequacy of the facilities, such as educational, religious, or opportunities for proper upbringing are matters which may affect determination of who should have custody.
In the determination of the interest of the child in making a custody order, factors the court may consider in granting the custody of a child include the following:
a. Age and sex of the child
b. The Wishes of the child
c. Education and religion
d. Conduct of the parties
e. Adequacy of arrangement for the child
f. Medical and psychological factors
g. Nationality of parent
h. Equality of parents
However, Section 71(1) of the Matrimonial Causes Act empowers the court with the discretion to "make such order in respect of custody, guardianship, welfare, maintenance, advancement or education of the child as it thinks fit". However, the discretion must be exercised judiciously.
In dealing with matters of custody, guardianship, welfare, advancement or education of the children of the marriage, the court may adjourn the proceedings until a report has been obtained from a Welfare Officer. Any such report may thereafter be received in evidence as provided in Section 71 (2) of the MCA, 2004.
A Welfare Officer is defined in Section 114(1) of the MCA, 1979 as: "a person authorised by the Attorney General of the Federation by instrument in writing to perform duties as a welfare officer for the purposes of this Act, being (a) a person who is permanently or temporarily employed in the public service of the Federation, or (b) a person who is permanently or temporarily employed in the public service of a state and whose services have been made available for the purposes of this Act in pursuance of the arrangement between the Federation and the State, or (c) a person nominated by an organization undertaking child welfare activities." on such matters that are relevant to the proceedings.
The report of the welfare officer is expected to cover all aspects of the life and welfare of the child in question. The relationship of the child with the parents and other arrangements for the welfare and education of the child should also be included in the report. This will assist the court in making its order.
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WRITTEN BY CHAMAN LAW FIRM TEAM
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