Introduction
The issue of custody of children—whether in cases of children born out of wedlock or from marriages that have broken down—has been addressed in several landmark decisions of Nigerian courts. The guiding thread across these decisions is that the interest of the child is paramount.
Custody of Children Born Out of Wedlock
In Anode v. Mmeka (2008) 10 NWLR (Pt. 1094) 1, the Court of Appeal held:
“The custody of a child born out of wedlock, as in the instant case, follows that of his mother in the absence of any person claiming custody of the child on the basis of being the natural father of the child. This is necessarily so because a child must belong to a family and should not be abandoned and left homeless for a situation he did not create.” (P.18, paras. F-G).
Similarly, in Muojekwu v. Ejikeme (2000) 5 NWLR (Pt. 657) 402, the Court of Appeal restated that:
“The custody of any child born out of wedlock follows that of the mother in the absence of any person claiming custody of the child on the basis of being the natural father. This must be so since the child must belong to a family and should not be rendered homeless for a situation he did not create.” (P.426, paras. A-B).
In Okoli v. Okoli (2003) 8 NWLR (Pt. 823) 565, the same principle was reaffirmed:
“The custody of a child born out of wedlock follows that of the mother in the absence of any person claiming custody of the child on the basis of being the natural father. And he cannot be subjected to any disability or deprivation. This must be so since the child must belong to a family and should not be rendered homeless as he was not present when the situation was created.” (P.580, paras. D-E).
Custody Under Yoruba Customary Law
The Supreme Court in Okwueze v. Okwueze (1989) 3 NWLR (Pt. 109) 321 explained the position under Yoruba customary law:
“Under Yoruba customary law, a child has attained, for example, the age of five, the court will have to consider who can best take care of the child in custody cases. If the court is convinced that the father can best provide for the child, especially, when the mother has no independent means of her own, the child will be put in his custody notwithstanding the fact that he was the guilty party.” (P.335, paras. A-B).
“In the case of dissolution of marriage under Yoruba customary law, the customary court will consider what is best for the child. If the child is too young, e.g., if it has not been weaned, the court will grant an interim order giving the custody to the mother notwithstanding the fact that she has been found to be the guilty party.” (Pp.334-335, paras. H-A).
“In making award of custody of a child in a dissolution proceeding under Yoruba customary law, the sex of the child is to be taken into consideration. A female child is considered to be more comfortable with the mother, and judicial notice could be taken of this notorious Yoruba custom while a male child is considered to fit in with the father.” (P.335, para. B).
Custody Under Matrimonial Causes
The Court of Appeal in Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297held:
“Award of custody of the children of a marriage that has broken down irretrievably, as in this case, is governed by section 71(1) of the Matrimonial Causes Act, which enjoins the court in proceedings relating to custody, guardianship, welfare, advancement or education of children of the marriage, to take the interest of the children as paramount consideration, and the courts in this regard are given wide discretionary powers which they can exercise according to the peculiar circumstances of each case. The welfare of the infant is not only the paramount consideration but a condition precedent, and the award of custody should not be granted as a punitive measure on a party guilty of matrimonial offences nor as a reward for the rival party.” (Pp.346-347, paras. G-C).
The same case also clarified Islamic law principles:
“Under Islamic law, custody of a child whether male or female is generally granted to a mother unless there is a compelling reason not to do so. Even where the mother for one reason or the other cannot cater for her child, custody is given to her relation not the relation of the father.” (P.354, para. F).
Constructive Custody and Custody by Third Parties
In Okobi v. Okobi (2020) 1 NWLR (Pt. 1705) 301, the Court of Appeal held:
“In the absence of any specific order that a child must be in the physical custody of the mother in whose favour the court ordered custody, the child if kept, as in this case, by the mother in the physical custody of the mother’s parents is constructively in the custody of the mother. Such a situation does not amount to custody by proxy and violation of the order of the court.” (P.342, paras. D-E).
The same case also highlighted that:
“By the provision of section 71(3) of the Matrimonial Causes Act, a court can grant custody of a child to even a person who is not a party to the marriage because the interest of the child is the paramount concern of the court in a dispute over custody of a child. So if the interest of the child will be best served by granting custody to another person, the court will so direct.” (P.329, paras. F-G).
Paramount Consideration: Welfare of the Child
In Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151, the Court of Appeal held:
“What constitutes the paramount welfare of the child in custody cases is a composite of many factors such as emotional attachment to a particular parent mother or father, the inadequacy of facilities such as educational, religious or other opportunities for proper upbringing. What the court deals with is the lives of human beings and ought not to be regulated by rigid formular. All relevant factors ought to be considered, the paramount consideration being the welfare of the child.” (P.177, paras. C-E).
Conclusion
From these decisions, it is clear that Nigerian courts, whether under customary law, statutory law, or Islamic law, emphasize that the paramount consideration is always the welfare and best interest of the child.
Custody is not about punishing a guilty spouse or rewarding an innocent one—it is about ensuring that the child is properly cared for, guided, and not left homeless or neglected.
Disclaimer
This blog post is for general informational purposes only and does not constitute legal advice. For guidance on specific custody matters, please consult a qualified legal practitioner.
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