Who gets custody when parents separate or divorce in Nigeria?

In my years of practice before the family courts, few things have troubled me more than watching a child become the prize in a war between the two people who brought them into the world. Two adults who once loved each other (sometimes, if we are honest, only for as long as it took to conceive the child) fall out, and almost overnight the child becomes something to be won, held on to and paraded as proof of victory.

I have never forgotten the words of one of the judges I admire at the Lagos State High Court: it is perfectly fine for adults to fall in and out of love, but children are not trophies to be dragged about.

I once handled a matter where, until the court intervened, that was exactly what was happening. The parents lived at opposite ends of Lagos, one on the Mainland and the other along the Lekki axis, and the children attended school on Victoria Island. On Monday they slept at their father’s house, on Tuesday their mother collected them, and so it went – a different home almost every night and hours in Lagos traffic every morning. Each parent was so determined not to “lose” that neither stopped to ask what this life was doing to the children. Eventually the court asked that question on their behalf.

When parents separate, their relationship with each other may end, but their responsibility to their child does not. Yet in the aftermath of a broken marriage or relationship, the question of who gets custody is often the most bitterly contested. What ought to be a sober decision about a child’s future quickly turns into a contest of competing rights, wounded pride and unresolved grievances, with each parent insisting that the child belongs with them. In that struggle, it is easy to lose sight of the one person at the centre of it all, the child, whose emotional security, sense of belonging and future may be profoundly shaped by the outcome.

Custody is not a prize for the better spouse, a reward for the wealthier parent or a way of settling scores between former partners. It is a decision that demands careful attention to the child’s needs, circumstances and overall welfare. Who, then, should have custody when parents can no longer agree? Does the law favour the mother, the father or the parent with deeper pockets? And what becomes of the parent who does not get custody? The answers all begin with one principle: when parents separate, the question is not who wins the child, but what is best for the child.

Where the law comes from

The court’s power over custody depends largely on the type of union the parents had, and getting this right at the outset matters.

• Statutory (Act) marriages. Where the parties married under the Marriage Act, custody is dealt with in divorce or other matrimonial proceedings under the Matrimonial Causes Act, Cap. M7, Laws of the Federation of Nigeria 2004. Section 71(1) directs the court, in any proceedings concerning the custody, guardianship, welfare, advancement or education of children of the marriage, to regard the interests of those children as the paramount consideration.

• All children, whatever their parents’ status. The Child’s Rights Act 2003 provides in section 1 that in every action concerning a child, the best interest of the child shall be the primary consideration. Section 69 empowers the court, on the application of either parent, to make orders on custody and access, having regard to the welfare of the child and the conduct and wishes of both parents, and to order the other parent to pay maintenance. In Lagos, these provisions are domesticated by the Child’s Rights Law of Lagos State 2007, and applications are heard by the Family Court established under that law, under the Family Court of Lagos State (Civil Procedure) Rules 2012. This is the usual route for parents who were never married or whose marriage was not a statutory one.

• Customary and Islamic law marriages. Custody may also arise in customary or area court proceedings and in Sharia courts in the North. Even there, the welfare of the child is the decisive factor.

One practical point from the courtroom: under the Matrimonial Causes Act, custody is an ancillary relief.

The best interests of the child: The governing principle

Whatever the route, the destination is the same. The court must look past the parents’ personal grievances and ask which arrangement best protects the child’s physical safety, emotional wellbeing, education and development.

The Court of Appeal put it in strong terms in Obahaya v. Obahaya (2022) LPELR-57141(CA): the welfare of the children of a marriage is not merely the paramount consideration but a condition precedent to any custody order, and custody is never awarded as a reward for good conduct. In the same vein, the court in Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297 held that custody must not be used to punish the party guilty of a matrimonial offence nor to reward the other party.

Does the law favour the mother or the father?

Clients ask me this question more than any other, and the honest answer is that neither has an automatic right, but the law is not entirely neutral either.

Under the old English common law and under many Nigerian customary law systems, the father of a legitimate child had what was often described as an absolute right to custody. That position no longer holds where it collides with the child’s welfare. The Supreme Court in Okwueze v. Okwueze (1989) 3 NWLR (Pt. 109) 321 held that even under customary law, custody must be decided on evidence of what serves the child’s best interest. The Court of Appeal applied the same reasoning in Okafor v. Okafor (2016) LCN/8249(CA) and again in Okide v. Okide (2020), where it refused to enforce the father’s customary right because doing so would have harmed the child.

On the other side, the courts recognise a rebuttable presumption in favour of the mother where the children are of tender age. In Odogwu v. Odogwu, the Supreme Court said that where a marriage has broken down and the children are young, it is presumed that the child will be happier with the mother, unless the contrary is clearly shown, for example by evidence of the mother’s cruelty to the child, serious immorality, mental incapacity or an infectious disease. The Court of Appeal reaffirmed this in Akinmosin v. Akinmosin (2023), upholding an order giving a mother custody of three children aged 12, 10 and 8, together with monthly maintenance and school fees from the father.

That presumption is a starting point, not a rule. The Court of Appeal held in Otti v. Otti (1992) 7 NWLR (Pt. 252) 187 that there is no inflexible rule that a young child must go to the mother. Each case turns on its own facts.

By the same token, a parent’s misconduct during the marriage does not automatically make them an unfit parent. Infidelity, for instance, is relevant to custody only where it has a real bearing on the child’s welfare. A parent who was a poor spouse may still be a devoted and capable parent, and the court will judge them as a parent.

Every case depends on its own facts, but in my experience the following considerations carry the most weight:

Safety and protection, emotional wellbeing, stability and continuity, Parental capacity, the child’s age, maturity and wishes, willingness to co-parent and financial circumstances.

These factors are weighed together, not in isolation. A parent with modest means may offer the more stable and loving home, while a wealthier parent may not be the one who has actually been raising the child.

What custody arrangements are available?

It helps to distinguish between legal custody (the right to take major decisions about the child’s education, health and upbringing) and physical custody, or care and control (where the child lives day to day). The court may order:

•Sole or primary custody. The child lives mainly with continuing parental responsibilities.

• Joint custody. Both parents share recognised roles.

• Split orders. Different aspects of custody are divided between the parents, for example, care and control to one and shared decision-making for both.

•Supervised or restricted access. Where there are real concerns about the child’s safety, contact may be supervised, limited or made subject to conditions.

Joint custody is not automatically the fairest outcome. The case I described at the start is a good illustration: a day-by-day swap between homes at opposite ends of Lagos may look “equal” to the parents, but it is exhausting and destabilising for the child. Where violence, coercion or deep hostility makes shared arrangements unsafe or unworkable, another arrangement will serve the child better.

What happens to the parent without custody?

Not having custody does not mean losing the child. Section 71 of the Matrimonial Causes Act and section 69 of the Child’s Rights Act both allow the court to make orders on access, and the courts generally recognise that a child benefits from a meaningful relationship with both parents.

Access can be tailored to the family: weekends, alternate school holidays, birthdays and festive periods, telephone and video calls, and involvement in key events such as school meetings and medical decisions. It remains subject to the child’s welfare, and where there is a genuine risk of harm, the court may impose safeguards.

The non-custodial parent will also usually be ordered to contribute to the child’s maintenance, including school fees and medical expenses. Custody, access and maintenance orders are not set in stone. As children grow and circumstances change, either parent may apply to have them varied.

A word to parents

If you are going through a separation, a few pieces of advice from someone who has sat through many of these cases:

• Try to agree before you litigate.

• Do not take matters into your own hands.

• Keep good records. School reports, medical records, etc.

• Leave the child out of the conflict.

Conclusion: The child must come before the conflict
Nigerian law places the child’s welfare at the heart of every custody decision. Neither a mother’s status, a father’s financial strength, nor either parent’s grievances can take the place of an honest assessment of what the child actually needs.

A custody decision should never be measured by which parent leaves the courtroom happier. It should be measured by whether the arrangement keeps the child safe, supports their development and gives them the best possible chance to thrive. The child is not a trophy to be won. The child is a person whose future deserves protection, even when the two people responsible for that future can no longer stay together.

Adetola Ayodel-Oni is a managing partner at Karren Walters Attorneys, [email protected].