WHAT ARE THE DISCRETIONARY POWERS OF THE COURT AS REGARDS THE CUSTODY OF A CHILD.
It will be appreciated that the Court has a wide discretion in custody matters. The Court has the discretion to make such order in respect of custody, guardianship, welfare, maintenance, advancement or education of the child as it thinks fit.
THE ROLE OF WELFARE OFFICERS IN CUSTODY CASES
“The court may adjourn any proceedings until a report has been obtained from a welfare officer on such matter relevant to the proceedings as the court considers desirable and any such report mareafter be received in evidence”.
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.
TYPES OF CUSTODY ORDERS THE COURT MAY MAKE
There are various custody orders which the court may make depending on the circumstances of the case. At all times, however, the court shall have regards to the interests of the child as the paramount consideration. The custody orders the court may make include:
I. Divided Custody:
This is a situation where the child lives with each parent part of the year with reciprocal visitation privileges. At the time the child is in custody of one of the parents, he/she has complete control over the child.
II. Split Custody:
In this case, the court grants custody to one parent and care and control to the other. The result is that the parent vested with custody has the power to control the major decisions of the child’s future while the other parent controls the day-to-day physical upbringing of the child.
The modern approach is to vest the custody in both parents (with powers to make major decisions) and grant care and control to one of them. The court may also grant care and control to one parent without making any order as to custody.
III. Joint Custody:
Joint custody involves both parents sharing responsibility and authority with respect to the children. This may involve joint “legal” custody and joint “physical” custody. The effect of this is that both parents are involved in the physical sharing of the child as well as participating in decisions affecting the child’s life such as education, medical problems etc.
This is in contrast with split custody. It should be noted that “joint” custody does not necessarily mean equal or fifty-fifty sharing of time since each case depends on the child’s age, parent’s availability & desires among other factors.
Before an order of joint custody is made, the court must ensure that the parents would co-operate with each other, otherwise, it will be an order in futility.
IV. Temporary Custody:
This is where custody of a child is awarded to a parent temporarily pending the outcome of a separation or divorce proceedings.
This power can be exercised where during a matrimonial proceeding, a dispute with respect to the custody, guardianship, welfare, maintenance, advancement or education of the children of the marriage arises after the proceedings for the principal relief has been instituted. The Petitioner or Respondent may make an application for an interim order of custody pending the final determination of the Petition.
The application may be made ex-parte in cases of extreme urgency or on notice to the other party. In cases of extreme urgency, an oral application may be made subject to the leave of court, before the ex-parte application or application on notice is made.
V. Third Party Custody:
Where the Court considers it desirable to do so, it may place the child under the custody of a third party- a person other than a party to the marriage, either permanently or as an interim measure, if it considers this to be in the child’s interest.
The Court will make this order:
· Where it is obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the child.
· Where neither of the parties to the marriage has applied for the custody.
· Where in the opinion of the court, neither of the parties to the marriage is a fit and proper person to have the custody of the child.
If custody is granted to a third party, the court may include an order as to proper access to the child by the parents.
CUSTODY OF A CHILD BORN OUTSIDE WEDLOCK
Under the Common law, a mother has a right to the custody of an illegitimate child to the exclusion of the natural father of the child. For a father to be awarded custody in such a circumstance under the common law, he must establish that the mother is unfit to look after the child.
Under the Customary law, if a woman has a child by a man to whom she is not married, the proper guardian of the child who is entitled to custody is the father of the mother and this is so even if the child has been legitimated by acknowledgement of the father.
However, under the Matrimonial Causes Act defines “children of the marriage” for the purpose of custody to include:
· Any child adopted since the marriage by the husband and wife or by either of them with the consent of the other.
· Any child of the husband and wife born before the marriage whether legitimated by the marriage or not; and
· Any child of the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband or wife. So however that a child of the husband and wife (including a child born before the marriage, whether legitimated by the marriage or not) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage
Therefore under the Act, the position of the customary law or common law will not apply to the custody of a child born outside of wedlock. The paramount consideration shall be the interest of the child.
In the course of the divorce proceedings, the court may make an order as to the maintenance of a child. Pursuant to the provisions of the Matrimonial Causes Act, any child below the age of 21 is automatically entitled to a maintenance. However, the maintenance order may be made in favour of a child above 21 years in exceptional circumstances. The maintenance order the court may make include welfare support, education advancement among others.
Meanwhile, an unmarried couple seeking an order of a child maintenance in Nigeria may do so pursuant to the provisions of the Child Rights Act or Child Rights Laws of the various states. The domicile of the parties is not required to institute such action like divorce proceedings, as by virtue of residence in such state will qualify the party to institute such action. A married couple not seeking a divorce, but just the maintenance of the child may institute an action pursuant to the Child Rights Act or Child Rights of a state.
In Conclusion, It is noteworthy that in the award of custody of a child by a court, the paramount interest of the child is the main key. However, it must be understood that the welfare of a child is not only the material provisions in the house, good clothes, food, air conditioners, television, but it is more of the happiness of the child and his or her psychological development.
WRITTEN BY: CHAMAN LAW FIRM TEAM
TEL: 08065553671, 08024230080