INTRODUCTION
Divorce in Nigeria is a multifaceted issue that intersects with cultural, religious, and legal dimensions. The institution of marriage in Nigeria, traditionally viewed as a sacred bond, often faces challenges that lead to the dissolution of marital unions. The incredibly high rate of matrimonial causes in Nigeria has become quite worrisome in recent times. This trend of development constantly leaves the fate of children of such crumbled marriages hanging in the air of uncertainty as some fundamental questions concerning the custody and welfare of those children need to be initially resolved by the courts.
Child custody decisions in Nigeria are influenced by a complex interplay of legal, cultural, and social factors. With diverse legal frameworks and varying cultural attitudes towards family and child-rearing, the custody of children following divorce or separation can be contentious. In the ordinary course of action, the type of marriage of the parents of such children would determine who has the right to the child’s custody in the event of separation or divorce. However, irrespective of the type or form of marriage a child is born into, the custody of the child is considered highly as a matter of children’s rights.
At Common Law, a father had an absolute right to the custody of his legitimate children until they attained the age of majority.[1] Even upon the father’s death, any claim by their mother to custody could be defeated by the father’s appointment of a testamentary guardian before his death. It is important to note that domestic violence plays a vital role in child custody decisions in Nigeria, influencing perceptions of parental fitness and the welfare of children. While legal frameworks increasingly recognize the need to protect children from the adverse effects of domestic violence, challenges remain in effectively addressing this issue.
1.1 DEFINITION OF TERMS
Custody is an important issue in divorce proceedings for the obvious reason that it implicates the child’s welfare.
CHILD CUSTODY
Custody is a vital tool in determining the welfare and best interest of the child, although the word “custody” is neither defined in the Matrimonial Causes Act[2] nor the Child’s Right Act of 2003. It has however, been defined by several authors and the courts as follows:
The Black’s Law Dictionary[3] defined Custody 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.”[4]
The Court of Appeal also defined Custody in the case of Otti v. Otti,[5]as: “essentially concerning control, preservation and care of the child’s person, physically, mentally; it also includes responsibility for a child in regard to his needs, food, clothing, instruction and the like……”.
Furthermore, in Nwosu v. Nwosu,[6] Custody was defined as: “The care, control and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision making authority) and physical custody (care giving authority), and an award of custody usually grants both rights.
DOMESTIC VIOLENCE:
Domestic Violence is defined by the Black’s Law Dictionary as “Abuse or violence against a person living in one’s household, particularly a spouse or partner. Domestic violence includes physical violence, emotional abuse, and other forms of intimidation and control that may harm a person or their property.”[7]
DIVORCE:
Divorce is defined by the Black’s Law Dictionary as “The legal dissolution of a marriage by a court or other competent body. Divorce may involve the division of property, custody of children, and the determination of support obligations”.[8]
1.2 DIVORCE PROCEEDINGS IN NIGERIA
Divorce in Nigeria is a multifaceted issue that intersects with cultural, religious, and legal dimensions. The institution of marriage in Nigeria, traditionally viewed as a sacred bond, often faces challenges that lead to the dissolution of marital unions. In Nigeria, just as in many other jurisdictions, divorce is a legal process that formally terminates a marriage. The Nigerian legal system recognizes several grounds for divorce, and there are specific procedures that must be followed to dissolve a marriage. Understanding the intricacies of divorce proceedings is essential for individuals seeking to end their marriages in Nigeria.
BRIEF HISTORICAL BACKGROUND
Historically, divorce in Nigeria was less common and often stigmatized in the then traditional society. In traditional Nigerian societies, marriage served not only as a union between individuals but also as an alliance between families. Marriages were often arranged, and the continuation of the family lineage was paramount. Thus, the concept of divorce was generally frowned upon in the society. However, with modernization, westernization and the influence of urbanization, globalization, and individualism, attitudes towards divorce have begun to shift. In recent times, divorce is increasingly recognized as a legal option for couples facing irreconcilable differences.
THE LEGAL FRAMEWORK
The legal framework governing divorce in Nigeria is complex, primarily due to the coexistence of statutory, customary, and Islamic laws. Divorce proceedings in Nigeria are governed by both customary and statutory laws, depending on the religion and ethnic background of the parties involved. The primary legislation governing divorce in Nigeria is the Matrimonial Causes Act[9], which provides the legal framework for divorce across the country. The Act governs the procedure and grounds for dissolution of marriage. The Matrimonial Causes Act outlines several grounds upon which a divorce can be sought in Nigeria. These grounds include adultery, willful desertion, cruelty, incurable insanity, renunciation of marriage, and non-consummation of marriage. It is important to note that each ground has specific requirements and evidentiary burdens that must be satisfied. The Islamic law, applicable to Muslims, also offers specific provisions for divorce, known as “talaq”, which can be executed by the husband under certain conditions. This legal pluralism complicates the divorce process, as individuals may navigate multiple legal systems depending on their background and beliefs.
The divorce process in Nigeria typically begins with one party known as the petitioner, filing a petition with the appropriate court. The petitioner must state the grounds for divorce and provide relevant evidence to support their claims. After filing the petition, the court will then serve a copy to the other party known as the respondent, who has an opportunity to respond to the allegations made in the petition. If both parties agree to the divorce and its terms, they may reach a settlement agreement, which would be presented to the court for approval. In cases where the divorce is contested, a trial may be required. The court will examine the evidence presented by both parties and decide based on applicable laws and principles of fairness. During the trial, the court may also address issues such as child custody, spousal support, and division of assets and liabilities.
1.3 THE OVERVIEW OF CHILD CUSTODY IN DIVORCE PROCEEDINGS[10]
Child custody decisions in Nigeria are influenced by a complex interplay of legal, cultural, and social factors. With diverse legal frameworks and varying cultural attitudes towards family and child-rearing, the custody of children following divorce or separation can be contentious. Child custody is a situation when a parent or guardian has been granted the legal and practical rights, duties, and responsibilities towards their children as a result of divorce or judicial separation. It involves decision-making power and physical control over the child’s upbringing and welfare. Generally, child custody is made through court orders or mutual agreement between parents to promote the child’s best interest.[11]
The Matrimonial Causes Act mainly governs dissolution of marriage, custody, and the welfare of children in Nigeria. Part IV of the Matrimonial Causes Act deals specifically with the making of orders for maintenance, custody, and settlements. The High Court is empowered under the law to make various orders with respect to the husband, wife, and children of the marriage. By the combined reading of Sections 2(1) & 114(1) of the Matrimonial Causes Act,[12]every High Court of each Sate of the Federation and the Federal Capital Territory have the jurisdiction to hear and determine child custody disputes relating to matrimonial causes.
For matters relating to matrimonial causes, the Matrimonial Causes Act empowers the State High Court and High Court of the Federal Capital Territory to make orders for child custody. Section 71 (1) of the Matrimonial Causes Act provides as follows:
“In the proceeding with respect to the custody, guardianship, 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 the court may make such order in respect to these matters as it thinks proper.”
Apart from the provisions of the Matrimonial Causes Act, the Child Rights Act of 2003 as well as the Child Rights Laws of the various states in Nigeria, Customary Courts Law, and Islamic Courts Law are also instructive to note depending on the type of marriage in question. However, it is important to mention that child custody disputes can either be matrimonial causes related or not.
1.4 TYPES OF CHILD CUSTODY ARRANGEMENTS[13]
- Physical Custody:
The term “custody” pertains to the residence of the child. It determines which parent or guardian the child will live with on a day-to-day basis. In some instances, one parent may be awarded physical custody while in others both parents may share joint physical custody.
- Legal Custody:
Legal custody refers to the power to make decisions, for the child such, as those concerning education, healthcare, religion, and overall well-being. Like custody, legal custody can be given exclusively to one parent or shared jointly by both parents (joint legal custody).
- Joint Custody:
Joint custody in terms means that both parents have rights and responsibilities when it comes to the legal and physical care of their child. The main goal of this arrangement is to ensure that both parents play a role, in their child’s life. To make joint custody work effective, communication and cooperation between the parents are crucial. They need to collaborate on decision-making and prioritise the well-being of their child.
- Sole Custody:
Sole custody refers to a situation where one parent is given physical custody of the child while the other parent usually has visitation rights. This arrangement is commonly used when one parent is considered unfit, due to reasons like abuse, neglect or substance abuse. It may also be considered when it is believed that limited contact with one parent would be in the interest of the child.
1.5 RIGHTS TO CUSTODY OF CHILDREN UNDER THE STATUTORY, CUSTOMARY AND ISLAMIC MARRIAGE.[14]
- Statutory Marriage
Custody of children during the pendency of a statutory marriage is governed by the provisions of the Matrimonial Causes Act and the Child’s Rights Act of 2003 which is to the effect that the custody of the children is not automatically bestowed on any person but will be determined based on the best interest of the child. The position of the law stipulating that before a court makes an order for a child’s custody, both parents have an equal right to the custody of their children was decided by the court in the case of Nwosu v Nwosu subject to the overriding principle stated under Section 71(1) of the Matrimonial Causes Act, the court may place the child in the custody of either of his/her parents as the court deems fit.
2. Customary Marriage
Under most systems of customary law in Nigeria, the father has the absolute right to custody of his children. On the death of the father, the custody of the child is vested in the male head of the father’s family, though the mother has unfettered rights over the day-to-day care of the child.[15] However, various provisions of the law now render these customs invalid, particularly, if granting custody to the father will not be in the best interest of the child as it was decided in the case of Febisola Okwueze v. Paul Okwueze,[16] where the Court held inter alia:
“Under most systems of customary law in Nigeria, the father of a child has absolute right of custody of the child. Though the superior right of the father is recognized, this right will not be enforced where it will be detrimental to the welfare of the child. The only proper manner in which custody of a child under customary law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child.”
3. Islamic Law Marriage:
Under the Islamic law, a wife only retains custody of a child when the child is a toddler, or less than the age of seven for a male child and nine for a female child, after which custody goes to the father.[17] However, the welfare of children will be considered in awarding custody as was decided in the case of Bilyamin Bishir v. Suwaiba Mohammad[18] where the Sharia Court of Appeal held that “the first thing to be considered in child custody matters is the child’s best interest, health, proper training, and the child’s education.”
2.1 THE APPLICATION OF THE CHILD RIGHTS ACT 2003 IN CHILD CUSTODY DECISIONS
The Child Rights Act of 2003 in Nigeria has a significant impact on child custody decisions by the court, providing guidelines and provisions to ensure the best interests of the child are prioritised. Below are some important aspects regarding the application of the Act in child custody decisions:
- Best Interests of the Child:
The Act places vital importance on the best interests of the child in any decision-making process involving custody. Courts are required to consider the physical, emotional, and psychological well-being of the child when determining custody arrangements.
- Non-Discrimination:
The Act prohibits any form of discrimination against children in custody decisions. This means that decisions should not be based on factors such as the child’s gender, religion, or cultural background but solely on their best interests.
- Parental Responsibilities:
The Act acknowledges the rights and responsibilities of parents towards their children. It recognises that both parents have an equal obligation to provide care, protection, and guidance to their children.
- Child’s Opinion:
The Act recognises the right of the child to express their views in matters affecting them, including custody decisions. Depending on the age and maturity of the child, their opinions may be considered by the court when making custody decisions.
- Mediation and Alternative Dispute Resolution:
The Act encourages parties involved in custody disputes to explore mediation and alternative dispute resolution methods. These processes aim to ensure that the best interests of the child are considered while promoting cooperation and effective communication between parents.
- Protection from Harm:
The Act emphasises the need to protect children from any form of harm, including physical, emotional, or psychological abuse. If there is evidence of abuse or potential harm in a custodial arrangement, the court may grant custody to the parent who can provide a safe and nurturing environment for the child.
- Parental Capacity and Resources:
The Act allows courts to consider the capacity, resources, and ability of each parent to meet the needs of the child when deciding on custody arrangements. Factors such as income, living conditions, and support networks may be considered.
- Enforcement of Custody Orders:
The Act provides mechanisms for the enforcement of custody orders. If one parent fails to comply with a court-ordered custody arrangement, the Act empowers the court to take appropriate measures to ensure compliance and protect the best interests of the child.
2.2 THE IMPLICATION OF DOMESTIC VIOLENCE ON CHILD CUSTODY DECISIONS IN NIGERIA
Domestic violence significantly impacts child custody decisions in Nigeria, influencing the courts’ considerations of parental fitness and the overall welfare of the child. As awareness of domestic violence increases, the legal system is gradually recognizing its implications for custody arrangements.
Domestic violence can profoundly affect custody decisions in several ways such as:
- Parental Fitness:
Courts assess each parent’s ability to provide a safe and nurturing environment for the child. Evidence of domestic violence can lead to the court deeming the abusive parent unfit for custody. The prevailing view is that exposing children to domestic violence poses significant risks to their emotional and psychological well-being.
- Protective Orders:
Victims of domestic violence can seek protective orders, which may impact custody arrangements. Courts may limit visitation rights for the abusive parent or grant sole custody to the victimized parent, especially when there is evidence of danger to the child.
- Child’s Best Interest:
The best interests of the child are central to custody determinations. Courts increasingly recognize that domestic violence can have severe emotional and psychological impacts on children, warranting arrangements that prioritize their safety and well-being. Research shows that children who witness domestic violence are at higher risk for mental health issues and behavioral problems, which courts may consider when making custody decisions.
- Mediation and Conflict Resolution:
In cases involving domestic violence, mediation may be deemed inappropriate, as it can place the victim in a vulnerable position. Courts may prefer litigation to ensure that the victim’s rights and the child’s welfare are adequately protected.
2.3 CHALLENGES IN ADDRESSING DOMESTIC VIOLENCE IN CUSTODY DECISIONS
While progress has been made, several challenges remain in addressing the influence of domestic violence on custody decisions in Nigeria:
- Cultural Stigma:
Cultural norms often stigmatize victims of domestic violence, leading to reluctance in reporting abuse. This stigma can also influence judicial attitudes toward victims, potentially impacting custody outcomes.
- Lack of Awareness:
Many individuals lack awareness of their legal rights regarding domestic violence and child custody. This lack of information can result in victims not seeking help or legal protection.
- Judicial Attitudes:
Some judges may hold traditional views on gender roles and family dynamics, leading to biases in custody decisions. There is a need for continuous training for legal practitioners on the implications of domestic violence in custody cases.
- Inconsistent Enforcement of Laws:
Although laws exist to protect victims of domestic violence, inconsistent enforcement and judicial interpretation can lead to varying outcomes in custody disputes.
CONCLUSION
Domestic violence plays a critical role in child custody decisions in Nigeria, influencing perceptions of parental fitness and the welfare of children. While legal frameworks increasingly recognize the need to protect children from the adverse effects of domestic violence, challenges remain in effectively addressing this issue.
FOOTNOTES:
[1] Thomasset v Thomasset (1894) 63 LJP, 140.
[2] Cap. M7, Laws of the Federation of Nigeria (LFN) 2004.
[3] Bryan A. Garner, Thomson Reuters, 9th ed. 2009.
[4] The Black’s Law Dictionary, 8th ed. (2004).
[5] (1992) 2 NWLR (Pt. 252) p. 210
[6] (2012) 8 NWLR (Pt. 1301) 1 p. 32 paras F-G.
[7] Black’s Law Dictionary 11th Edition
[8] Black’s Law Dictionary 11th Edition
[9] Cap. M7, Laws of the Federation of Nigeria (LFN) 2004.
[10] https://www.mondaq.com/nigeria/divorce/1217960/child-custody-in-nigeria-a-fallout-of-irretrievable-breakdown-of-marriages
[11] Kelly J B, The Determination of Child Custody, Children and Divorce 1994, 4(1) 121-142
[12] Cap. M7, Laws of the Federation of Nigeria (LFN) 2004.
[13] Wilson Diriwari & Damdebo K. Derri Protecting the Best Interests of Children: A Critical Analysis of Child Custody and Divorce Proceedings in Nigeria under the Child Rights Act 2003 International Journal of Social Science, Management and Economics Research Volume 1 Issue 4 Nov-Dec 2023
[14] https://www.mondaq.com/nigeria/divorce/1217960/child-custody-in-nigeria-a-fallout-of-irretrievable-breakdown-of-marriages
[15] E.I. Nwogugu, Family Law in Nigeria, (2nd ed, Heineman publishers 1974, reprinted 1985), p. 260.
[16] (1989) 3 NWLR Pt. 109, p. 321.
[17] See Action for Justice Nigeria; available at https://nigeria.action4justice.org/legal_areas/womens-rights-focusing-on-marriage-rights/child-custody-and-property-rights-in-marriage/
[18] Unreported Suit No: KTS/SCA/KT/39/2019.
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