When there is a collapse of matrimonial relations, Child Custody issues are often incidental to the proceedings. In the award of the custody of a child, it is imperative to state that there are 3 dispensations guiding the proceeding. It is largely dependent on if the parents were married or are unmarried. If the parents were married, the type of marriage contracted is also a significant factor. In a dissolution proceeding involving a couple who married under the Marriage Act, the arrangements for maintenance, education and custody of the children must be intricately stated in the divorce petition. A decree absolute will not be granted unless the court is satisfied that ample custodial and financial arrangements have been made for the child. The court will not interfere in the award of custodial rights if the couple resolves the issue amicably prior or during the proceedings. The court will only intervene in a situation where the custody battle assumes a chaotic and complicated dimension. In a situation where the parents are unmarried, the appropriate channel is the Family court where the provisions of the Child Rights Law will be applied. It is instructive to note that custody proceedings can only be instituted regarding children under the age of eighteen years.
In child custody proceedings, the court has wide discretionary statutory powers which must be exercised judiciously. In the exercise of these powers, the overriding consideration is the best interest of the child which is the universal standard. The fundamental objective of the court is to protect the welfare of the child and not the desires, sentiments or personal convictions of the parents which are often induced by strife, bitterness and ego. In evaluating the best interest of the child, the education, welfare, security, development and overall well being of the child are the factors that are generally considered by the courts. There is a popular misconception that custodial rights of children are the exclusive preserve of the mothers. This notion is incorrect as there are no hard and fast rules in custody arrangements. Every case is evaluated on its merits. The starting point in the determination of any custody order is the equality of the parents. The claims of either of the parents is not superior to the other rather the claims of an unimpeachable parent is superior. Custodial rights are granted to the parent who has demonstrated the most compelling parenting and nurturing abilities.
However, the modern approach taken by the courts in recent times is the award of joint custody to both parents rather than the award of sole custody to one of the parents. This essence of this approach is anchored on the fact that the presence of both parents in the lives of the children is essential to their survival and development. Shared custody is a custody order that gives equal rights to both parents. Major decisions that affect the child must be taken jointly by the parents. However, one of the parents will have the primary custodial rights of the child. In undertaking the task of determining the custodial parent, the court is bound to consider what is the best interest of the child which is influenced by various factors.
Age of the child: There is a general belief that the custody of younger children are better awarded to their mothers because of the requirement of intense care but this presumption is rebuttable and impeachable. The court will not base its decision solely on this assumptions rather each case will be considered on its merits. The evaluation will be centred on which parent will serve the best interest and the welfare of the child. If a father can establish that the mother of the child is not fit and proper to take care of the child, the award of the custody will be to the father. Situations like this may arise where it is established that the mother is a drug addict or is in the habit of neglecting or abandoning the child. Another example may be where the mother does not possess the physical or mental ability to take care of the child.
SEX OF THE CHILDÂ
A factor which is considered by the court is the sex of the child. It is generally believed that girls should be in the care of their mothers while boys should be in the care of their fathers. However, the sex of the child is not a major factor that can influence the decision of the court but it is usually considered. There must be other compelling factors that will influence the outcome of the decision of the court. The issue of the sex of the child is mostly considered where both parents are equally qualified and unimpeachable especially where the child has attained puberty or is in his teenage years. It is the belief that the father of a teenage boy will be in a better position to guide and nurture him while the interest of a teenage girl will be served by awarding the custody to the mother.
THE WISHES OF THE CHILD
The decision of the court is sometimes influenced by the wishes of the child particularly children who have attained the age where they have the capacity to freely express their wishes. However, the court is always circumspect in attaching value to the wishes of children because of the likelihood of undue influence or emotional blackmail by one of the parents. The wishes of the child may not necessarily serve his interest in the circumstance.
EDUCATION AND RELIGION OF THE CHILD
The arrangement for a child’s education and religion is a major factor in determining the issue of custody. The courts are usually unwilling to disrupt a child’s education and would rather keep disruptions to the barest minimum during custody battles. In the consideration of the child’s education, the usual stand of the court is maintaining the stability and routine of the child in his present education. Where the award of custody to one of the parents will disrupt the educational stability of the child, the court may not award custody to such parent. The court will rather award custody to the parent who can ensure the continued stability of the child in his current educational arrangement. The factors that assist the court in its decision will be the child’s performance in his present school, the quality of the school, the attendance of the child in school, extracurricular activities the child engages in school and the level of the involvement and commitment of the parents in the child’s education. For example, the court may be more favourable to the parent who drops off and picks up the child from school, the parent who attends the PTA meetings of the child and participates in homework activities.
Another factor that the court considers pre-eminently is the religion of the child. The religion of a child is one the rights guaranteed under the Child Rights Law of various states. The child has a right to continue to practise the religion he has been accustomed. The decision of who has a superior arrangement for the spiritual development of a child can sway the decision of the court.
EMOTIONAL ATTACHMENT AND DAILY CARE
The court will inquire into which parent shares the deepest bond with the child. This will be evident by who is more available to the child’s physical needs, which parents spends more time with the child, who has a knowledge of the child’s interests, the child’s foods, who makes the child’s meals, which parent is more apt to listen to the child’s failures, triumphs, adventure, books, favourite television programmes, who puts the child to sleep, who teaches the child manners and who has a more balanced relationship with the child are some of examples. The court is particularly interested in the emotional and physical attachment of the child because it is very fundamental to the growth and development of the child. The court is more inclined to award custodial rights to the parent who has been the primary care giver to the child if in consideration of other factors, it is appropriate to do so.
FINANCIAL PROVISION
Consideration is also given to the parent who can make adequate financial provisions for the child. This may involve the parent who has a superior financial arrangement for the living condition and better education opportunities for the child. However, as material as this factor is, the financial capacity of the parent is not the sole determining factor. It does not necessarily mean that the parent with the higher financial standing will get the custodial rights of the child. A parent may have higher financial resources than the other parent but may have less inclination and commitment towards the child than the other parent. In such cases, the court may make an order directing that the wealthier parent makes adequate financial provision for the child while the other parent will have the custodial rights.. The court is more inclined towards a parent who has demonstrated more parenting skills.
Stable living conditions: Stability and routine are important to a child’s sense of security and development and it is usually given priority in custody disputes. The courts are generally more disposed to maintaining the living condition and stability the child is accustomed to because of the likely negative impact it may have on the child. The living arrangements, school arrangements, child care routines are some of the routines the courts are reluctant to disrupt unless there are compelling reasons to sway the decision of the court in favour of the other parent. The only time the court may disrupt the existing routine of the child is if the change will be more beneficial to the child than the existing arrangement. It could be the availability of a better education opportunity, access to more extracurricular activities, a better living arrangement, medical support and more child support.
SAFETY
The safety of the child is a factor that the courts consider significant in the evaluation of custody options of a child. Where the safety of the child is likely to be compromised, the court will readily deny custodial rights to such parent. A parent who has a history of domestic violence, alcohol abuse, drug abuse may not get the custody of the child. A living condition which is likely to expose the child to harm is a factor that will strongly affect the decisions of the court.
MENTAL AND PHYSICAL HEALTH OF THE PARENTS
Mental, emotional or personality disorder evident in one of the parent may negatively affect the chances of the award of custodial rights of that parent. Physical disability which may greatly impair the likelihood of the child receiving adequate care is also a factor that is considered by the court in determining the award of custodial rights. This consideration should not be interpreted to mean that the courts are discriminatory against a disabled parent. It is rather from the standpoint that such parent may also be dependent on other people for their care and this will inimical to the child receiving optimum care.
MEDICAL NEEDS OF THE CHILD
The custodial rights in respect of a child with special needs are assessed critically by the courts. The court must be satisfied that custody is awarded to the parent who is more committed and that can provide the physical and medical needs required by the child.
SOCIAL AND PSYCHOLOGICAL DEVELOPMENT OF THE CHILD
In custody conflicts, the social and psychological development of the child is a major consideration in the assessment of custodial rights of the parents. Social development includes the recreational and extracurricular activities the child engages in. The court is likely to favour the parent who takes the child to school activities, movies, to the park over the other parent who does not. The parent seeking custodial rights must demonstrate strong abilities to the court that he has a better arrangement regarding the social development of the child. Another factor in the social development of the child is the access to other siblings, if any, grandparents, family friends and other family members. The court will be reluctant to grant a custody order to a parent whose arrangement will greatly impair the child’s access to other family members for example if the parent will be relocating from Lagos to a part of the country where access will be greatly prejudiced.
The factors enumerated above is some of the factors considered by the court but not exhaustive. Some extraneous factors may also be considered insofar the interests of the child will be protected. There are some other custody conflicts that may involve third parties. Examples of such situation is a where a grandparent is seeking the custodial rights of her grandchild. This may be due to the death of one of the parents of the child and the other parent may be grossly unfit to cater to the child or it may be that both parents are unfit to undertake the adequate upbringing of the child. It is possible that custodial rights are granted to such a grandparent or family member if it will be in the best interest of the child.
It is advised that in custody disputes, the parents should suspend their personal interest and egos and ensure the paramount consideration is the main objective. It is critical that the best decision that will advance the well being, happiness and development of the child is taken in the circumstance.
Written by,
Olamide Onifade,
Senior Partner, Olamide Onifade & Associates
149, Ogudu Road,
Ogudu.
Tel: 09093335636
Email:barristerola mideonifade@gmail.com
