Family law

Divorced Parents: Who Gets The Children

Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other and this is naturally fulfilled by bearing and rearing children together. There are different marriages celebrated in Nigeria which are; statutory marriage popularly known as “court” marriage, customary marriage popularly known as traditional marriage, and Islamic marriage.

This article is focusing on custody of children in the event of the “end” of a statutory marriage. Custody is an important issue in divorce proceedings because it is a category of and an aspect of child welfare. It is a vital tool relating to the welfare and best interest of the child. The courts are duty-bound to ensure that the custody of the children in the event of divorce is granted to the parent, who would be in a better position to play down some, if not all, the observed consequences of divorce, instead of aggravating it.[1]

Dissolution of Marriage

Dissolution of marriage is also called divorce. It is the legal termination of a valid marriage. Divorce is solely judicial and permitted only for a few exceptional reasons which are provided for in the law and have to be established before the court by the party seeking the dissolution. Section 15 of the Matrimonial Causes Act provides for the ground for the dissolution of statutory marriage, which is that the marriage has broken down irretrievably.

There are different facts that support the ground for the dissolution of statutory marriage, but there is just one ground for divorce. These facts that support the ground include;. At least one of these facts must be present before the court grants the dissolution. In theory, divorce is discouraged and should be the very last resort, however when it comes to it, the children become of paramount consideration.

Custody of Children

As a rule, parents are joint guardians of their children and have joint custody during the marriage.[2] When parents separate, there is a need to consider custody of the children, that is, who should undertake day-to-day care and control of the children, and whether a noncustodial parent should have access to the children and on what terms. The court can grant custody to either parent or a third party.[3]

Where the court considers it desirable to do so, it may place the child under the custody of a third party that is, a person other than the parents of the child. This can be either permanently or in the interim as long as it is in the Childs best 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 parties to the marriage have applied for the custody; where in the opinion of the court neither parent is fit to have custody of the child.

The Role of The Court in Custody

The court has a role to grant custody at its discretion. The court can decide to grant custody to either or both parents or to a third party. The interests of the children as provided by section 71(1)[4] shall be the paramount consideration when the courts decide questions of custody and, subject thereto, “the court may make such order in respect of the custody, guardianship, welfare, advancement or education of the children as it thinks proper”.

Although this provision gives the courts ample discretion, any such decisions must reflect the children’s interest as the most important consideration. Damulak v Damulak[5] the court held that: “in all matters relating to custody and welfare of the child of the marriage the dominant issue that calls for careful examination is the absolute interest of that child or those children.”

What The Court Considers In Granting Custody

These considerations help them to decide to whom, between the parties, custody should be granted. Of prominence are such factors as the adequacy of arrangements respectively made by the parties for the children’s welfare, their conduct, age of the children, sex and social background of the children, and the need to keep the children together. These will be considered below:

  • Adequacy of arrangements made by the parties: Nigerian judges seem to have developed sensitivity to the issue of arrangements made by the divorcing couple for the welfare of the children.[6] These arrangements include those for the care, accommodation, education and advancement of the children. The judges will consider the financial capability of the parties, and be favourable to the more financially capable party.

  • Conduct of the parties: The 1970 Act does not specifically provide that the courts should have regard to the conduct of the parties in deciding which of them should have custody of the children. However both the High Courts and the appeal courts, following the English case of Re L. (infants)[7], have held that conduct of the parties is a matter to be taken into account. The parent who conducts their self better, especially in the way they treat the children will be favoured in the consideration of the court.

  • Age of children: The courts consider the children’s age in deciding which of the parties should be awarded custody.[8] Unlike many traditional African systems where children’s opinions are hardly sought, the judges have indicated that where the children are old enough they would be invited into the judge’s chambers where they would be allowed to express their own wishes. Although the courts are not bound to comply with such wishes, Lambo J in Adams v. Adams[9] said that the court would nonetheless take them into account when making the order.

  • Social background and sex of the children: The courts have taken into account the social background and sex of the children in determining what is in his interest and to whom custody should be granted. Where the children were brought up will be important to the court; a child brought up in Nigeria will most likely be kept in the care of a parent staying Nigeria than one intending to take the children outside Nigeria.

  • Keeping the children together: Cases demonstrate the courts’ recognition of the importance of keeping brothers and sisters together.[10] According to the courts it is in the interest of the children that they should grow up together in brotherly and sisterly love and not as strangers. For this reason custody of all the children has often been granted to one party.

When a court has weighed all the evidence before it and considered all factors relevant to a particular case, it exercises a discretion as to whether or not to grant custody, in whose favour to grant the custody, and the nature or form the custody order should take; provided that the best interests of the children are served by its decisions. Although the Matrimonial Causes Act does not make provisions for the kinds or nature of orders a court can make with respect to the custody of children, courts have in the past, followed the practice in England where necessary.

[1] S C Ifemeje, Contemporary Issues in Nigerian Family Law, op cit, p. 136. 

[2] Eunice NkiruUzodike, ‘Custody of Children in Nigera: Statutory, Judicial and Customary Aspects; (1990) The International Comparative Law Quaterly Vol. 39 419-433 422.

[3] Rosemary Dalby, Essential Family Law, (2nd Edition Cavendish Essential Series), Cavendish Publishing, Australia, 77.

[4]Matrimonial Causes Act 1970.

[5](2004) 8 NWLR 155.

[6]Eunice NkiruUzodike, ‘Custody of Children in Nigera: Statutory, Judicial and Customary Aspects; (1990) The International Comparative Law Quaterly Vol. 39 419-433 422.

[7](1962) 3 All ER 1.

[8]Note 56 423.

[9](1972) 2 ALL NLR 82.



About Lois Olagoke-Daniel

Lois Olagoke-Daniel is a legal practitioner called to the Nigerian bar in 2021. A graduate of Afe Babalola University with excellent communication, organization, and project skills. She is a lawyer that has a wild thirst for the knowledge of and also sharing this knowledge to all those within reach.