Custody of children
One of the most contentious consequential or ancillary aspects of dissolution of customary law marriages like other forms of marriages is the issue of the custody of children. Under the Customary Courts Law of the various states where customary courts have been established, provisions have made relating to custody of children in the event of dissolution of customary law marriages by customary courts. For example, the Customary courts law 1984 of defunct Bendel State (as applicable to Edo State), jurisdiction of Customary Courts in Edo State in the area of guardianship and custody of children under customary law is unlimited.
Generally, in most systems of customary law the father has absolute right to custody of the children of the marriage. Upon his death, the male head of the father’s family is vested with the right. Although the day to day care of the children may be the responsibility of the mother.
Where however, the children are still of tender age in need of motherly care and affection, the children are kept in the custody of their mother until they can be properly and safely separated from their mother and returned to their father. There has been a host of judicial decisions by courts in Nigeria interpreting this aspect of customary. Most of them have generally upheld this principle.. Although, it must be said that the strict application of this custom is fast waning. Nowadays, different factors are now taken into consideration in determining the issue of custody of the children of a customary marriage. Therefore decisions such as that in the case of Abiakam v. Anuawu50, where the court upheld the primary of the absolute right of a father to custody of children until they attain the age of majority and that of the Delta State Customary Court of Appeal in an unreported case of Mbanoso vMbanaso in respect of custody where the court stated thus:
“We have observed earlier that in most systems of customary law in Nigeria, the father of a legitimate child or legitimated child have absolute right to custody of the child and most courts have taken judicial notice of this; so it need not be specifically proved.”
Has been modified and watered down by the Nigerian Supreme Court in the case of Okwueze v. Okwueze. In this case, the Supreme Court held that whilst it recognizes the superior rights of the father, this right will not be enforced where it will be detrimental to the welfare of the children. However, there has been statutory intervention in this area in cases of judicial dissolution of marriage. As early as 1958, the marriage, Divorce and custody of children adoptive By-law in force or applicable to the states of Ogun, Oyo, Ondo and Bendel (now Edo and Delta States) provided as follows.
“When making an order with regard to paternal rights over a child, the court-
- Shall at the same time make an order with regard to the custody and upbringing of such child and in the making of such order the interest and welfare of the child shall be the first and permanent consideration”.
Similarly, under the Customary Courts law 1984 of defunct Bendel State (as applicable to Edo State) in any matter relating to the guardianship of children, the interest and welfare of the child shall be the first and paramount consideration. The primacy of the ‘best interest and welfare’ principle in custody of children contestation has become the prevailing general legal road map that customary court in Nigeria adopt in the determination of this prime issue. This is also true of statutory marriages conducted under the Nigeria Marriage Act by the various High Courts where jurisdiction is reposed. Therefore it is submitted, that the same meaning is attached here.
Best interest and welfare of a child.
What is the best interest and welfare of a child? There exist a plethora of judicial decision upholding this principle and defining the best interest and welfare of a child. In the case of Buwanhot v. Buwanhot54the Nigerian Court of Appeal held that the welfare of the children of the marriage, in terms of their peace of mind, happiness, education and co-existence is the prime consideration in granting custody. Also in the regard, Belgore JSC in the case of Odogwu v Odogwu stated that.
Welfare of a child is not the material provisions in the house – good clothes, food, air-conditioners, television, all gadgets normally associated with middle class, it is more of the happiness of the child and his psychological development….. While it is good for a child to be brought up by the complimentary care of the two parties living together. It is psychologically detrimental to his welfare and ultimate happiness and psychological development if the maternal care available is denied him
Similarly, in the case of Udusote v Udusote the court defined interests of the children to include their welfare, education, security and overall wellbeing and development.
It is apposite here to underscore the following points in relation to the issue of custody. Firstly, although the best interest of the child is the first and paramount consideration, it is certainly not the only consideration.In the case of Obajimi v Obajimi the Nigerian Court of Appeal, held interalia that although the welfare of the minor is the first and paramount consideration, it is not the sole consideration. The conduct of the parties is a matter to also be taken into account. In other words, according to the court, before making an order for custody, the trial court must take into consideration, the interest and welfare of the children as well as the conduct of the father and the mother and their respective resources, comportment and total biodata. Secondly,although there is no rule of law which says that a female child or a child of tender age should remain in the custody of the mother when the marriage is dissolved, however, it cannot also be seriously disputed that children who are female and in their growing or formative years are better cared for and looked after by their mother, except the contrary is shown by credible evidence. It is generally presumed that such children would be happier and more at peace because of the closeness and intimacy which breed affection and familiarity with the mother who most of the time was there for them.
Therefore, the court in the case of Udusote v Udusote has held that unless it is abundantly clear that the mother suffers from moral conduct, infections disease, insanity, lack of reasonable means or is cruel to the children etc, children of tender age, male or female are ordinarily better off in terms of welfare and upbringing with their mother. Of course, there may be exceptions where the father may be better off than some mothers in the upbringing of the children. There is always however, that rebuttable presumption in favour of the mother in the consideration of broken down marriages.
Thirdly, custody of children is not a once and for all thing. Under the Customary Courts Law 1984 of defunct Bendel State as applicable to Edo State,
Whenever it shall appear to a customary court that an order made by such court shall in the interest of a child be reviewed, the court may of itsownmotion or upon the application of any interested person vary or discharge such order.
This is clearly because of the significance of the welfare of children and recognition of the fluidity of circumstances that may influence this consideration. In Obajimi v Obajimi (Ikyegh JSA in respect of this stated that:
Custody of children is an on-going exercise akin to recurrent decimal. It is a day to day or revolving affair. Whenever any of the spouses discovers conditions have changed or altered for the worse in respect of the interest, benefit and welfare of the children or child in the custody of another person or spouse, he or she can apply to the court to review the custody order. The court upon hearing the parties would reach a decision in the best interest of the child or children as the case may be.
It is imperative to underscore the point that although the above cases cited in relation to the issue of maintenance of children were decided in relation to statutory marriages, it is submitted that the principles distilled from them are also germane and holdtrue in respect of customary marriages, particularly in the interpretation of similar provisions contain in the Customary Courts rules of states where they have been created.
Maintenance, sometimes also referred to as Child’s support in some jurisdictions such as the USA, is defined by Black’s law dictionary as, ‘‘financial support given by one person to another, usually paid as a result of a legal separation or divorce.’’ A more comprehensive definition is contained in Wikipedia. Here it is defined as:
An on-going periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian, or state) following the end of a marriage or other relationships. Child maintenance is paid directly or indirectly by an obligor to an obligee for the care and support of children of a relationship that has been terminated or in some cases never existed. Often the obligor is a non-custodial parent. The obligee is typically a custodial parent, a guardian or the state.
Generally, under the Nigerian customary law, like the English common lawthere is an obligation on the part of a husband to provide materially for or maintain members of his household. The duty subsists even where the marriage is dissolved. This usually forms the legal basis of a claim for maintenance of the children as an ancillary relief to a claim for custody. Consequently, a claim for this relief is usually made by a woman together with a request for custody. Generally, a decision on whether or not to grant this relief and the amount to stipulate is premised on some factors which the court must take into consideration in deciding a question of whether or not to grant an order of maintenance and the amount to award. These factors include the following:
(a) The respective means of the parties
(b) Their stations in life and their life styles
(c) The conduct of the parties.
As has been stated above, under customary law a duty to maintain a wife is imposed on a husband. There is however no clear practice of the payment to a wife of post-divorce maintenance under customary law otherwise called alimony. According to Brown Umukoro Esq, though customary law is limited in its application and applies to only those who are subject to it, there appears to be no record of any particular traditional African society where the practice of wife maintenance after divorce is widely recognised under customary law. The idea of maintenance of an ex-wife is indeed seen as in direct conflict with African custom. Even in consideration of the provisions of section 70 of the Matrimonial Causes Act which provides for maintenance in statutory marriages, Nigerian Judges have often been reluctant to grant alimony.In the case of Akinsemoyin v Akinsemoyin, Thompson J made the following observation:
‘‘….the history of maintenance in England is different from the history here.We have merely inherited a statutory provision based on the custom of the people of England,which are not only unknown in this country but is in contradiction to our own….’’
This decision was recently followed by the Etsako West Area Customary Court,Auchi Edo state in the case of Elugbe v.Elugbe presided over by Bright E.OnihaEsq.The court in that case refused to grant post-divorce maintenance sought by the respondent/cross petitioner for the above reasons. Similarly,in the case of Okafor v.Okafor, Oputa J (as he then was) once again exposed a judicial reluctance to award wife maintenance and therefore held as follows:
Since it is the trend under the Matrimonial Causes Decree to facilitate the dissolution of marriages, a wife/petitioner eager to have all links with her husband broken should not keep alive any financial link with a man she no longer owes any marital obligation including the obligation to maintain. Why should there not be a complete dissolution including the dissolution of all erstwhile financial bounds or obligations.
This paper has critically examined customary marriages from the perspective of dissolution, the ancillary thorny issue of custody of children (if any) between the separating/separated couples and maintenance. From the above discourse, we have seen that the legal principles governing dissolution customary marriages and custody of children under customary law and under statutory marriages conducted under the Act are significantly similar and well developed. Where differences exist, there have been statutory interventions. These statutory interventions are, for instance, evident in the provisions of the Marriage, Divorce, and Custody of Children Adoptive Bye laws 1958 and the Customary Courts Laws of the many states in Nigeria where customary courts exist. As a resultof this, customary marriages and customary courts conferred with unlimited jurisdictions over matrimonial causes and matters have become increasingly popular and protective of women and children’s rights. At the same time, unlike in the past, the principles guiding these aspects of customary marriages examined in this paper have become well defined and equitable. This has effectively laid to rest the bias of superiority of statutory marriages over customary marriages generally and in the area of divorce and custody of children in particular.
Read Part (I) here
BRIGHT E. ONIHA LL.B (Hons), LL.M. BL, Ass.Mem.CIA(Nig), President 1 (Special Grade) Area Customary Court, Edo State Judiciary. Email:Onihalawlibrary@gmail.com
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