Under most Customary law systems in Nigeria, it is believed that the father has the absolute right to the custody of the child. If the father dies, then the right will be transferred to the head of the father’s family, although the daily care of the child may be the mother’s responsibility.
Who Owns a Child Born Out of Wedlock in Nigeria?
However, the customary law giving the father absolute control only stands if it will be in favor of the welfare and interest of the child. For example, for a child that is still of tender age, customary law requires the child to be left under the mother’s care. For that period that the mother is caring for the child, the father’s right is merely in abeyance, and it may be exercised when the child is old enough to be safely separated from his/her mother.
Under statutory marriage, this exclusive custodial right of a father’s custody of the children is not applicable.
Under Igbo Customary Law, the father of a female child that is yet to wean is granted the custody of the child. Under Yoruba Customary Law, the mother of a female child that is yet to wean is granted the custody of the child. This shows that the numerous ethnic groups and customary laws vary in Nigeria.
There Is The Possibility of The Father Not Getting Custody Under Customary Law
Even though customary law favors the father because of the general rule that holds, stating that male children should be with their fathers, however, if it’s not in the best interest of the child, then the father might not be granted custody. For instance, if the father re-marries, it is impossible to know if the child will get the same attention and love from his stepmother. If the customary law is adhered to, then there will be no equality between the parents as to the custody of the child.
When it comes to the custody of a child, the child’s welfare and interest are paramount in making judgments. Customary law will not be enforced if it will be detrimental to the welfare of the child. This means a mother will have the same authority and rights just as this father, so they shall be equal.
How Is The Welfare of a Child Determined In Nigeria?
In recent times, the custody of a child is not entirely based on customary law, instead, there are different factors to are put into consideration before custody is given to either of the parents. These factors have been regarded as relevant by the court. The factors regarded as relevant include but not limited to the following —
- The arrangements made by the parties for the education of the children
- Proper care of the child
- The degree of familiarity of the child with each parent or party
- The income of each parent
- The amount of affection by the child for each parent or party
- The child’s familiarity with the environment where they have always lived
- The respective accommodation of the parties and
- The fact that one of the parties now lives as man and wife with a third party who may not welcome the presence of the child
- The fact that custody of children of tender age will most probably be awarded to the mother unless other considerations make it undesirable
- The fact that in principle children should not be separated but should as much as possible live and grow together.
The court will take into consideration the conduct of the father and the mother, their comportment, and biodata. This factor has been emphasized regularly in different decided cases.
Who Takes Care of The Child If Both Parents Are Denied Custody?
If the court decides to deny both parents custody, then the custodian will have to be a third party (a person other than the parents but usually related to them). The custody could either be permanent or it can be as an interim measure, depending on what will be in favor of the child. There are certain factors to be considered before the custody of the child is given out to a third party —
- Where it is obvious that either of the parties to the marriage is not genuinely interested in the welfare and upbringing of the child.
- Where neither of the parties to the child has applied for custody.
- Where in the opinion of the court neither of the parties to the child is a fit and proper person to have custody of the child.
To summarize everything — a father is usually granted custody automatically through customary law, however, that may not be the case if the welfare of the child might not be met under his custody. This gives a woman the chance to have custody of her child. If both parents are deemed unfit, then a third party will be awarded custody of the child.