The Holy Book[1] couldn’t have said it better that ‘Children indeed are the gift of God, and happy is a man that has his quiver full of them”.[2]One of the most sensitive parts of a divorce proceeding is the custody of children from the union sought to be dissolved. Indeed, it is a difficult task for the Judge, parents, and children alike, as children are not mere chattels to be split but whole human beings, and custody can go a long way to affect their welfare and general well-being.
Custody of children usually has its twists and turns as we have seen occasions of the children being split amongst parents, all the children assigned to the custody of the mother or father as the case may be. Custody may also be granted to such responsible persons other than the parents of the child or children if circumstances demand so. Curiously, it is not unusual to find parents without the capacity to fight for custody as well in other to get at the other party. The children are then left hanging and have to surrender to the pronouncement of the Court. One thing is clear, however, that both parents naturally have rights to access and custody of the child before the Court’s pronouncement on the same.
Specifically, the law recognizes different types of custody that can be pronounced and employed by the Courts depending on the circumstances of each case. These are namely: Divided Custody; Split Custody; Joint Custody; Temporary Custody, and Third-Party Custody. A concise explanation of the different types of custody will be useful to this discourse:
- Divided Custody – this type of custody is perhaps the most common in Nigeria today. It occurs where the court directs that a child lives with each parent at different periods (during holidays, off holiday, during Christmas break, Easter break, amongst others) within a year, with visitation privileges. When this occurs, the child is expected to be in the custody of one of the parents at the time, who will, in turn, exercise complete control over the child within that timeframe.
- Split Custody – as the name suggests, this occurs when the Court grants custody to one parent while care and control of the child is granted to the other simultaneously. in which case the parent vested with custody has the power to control the major decisions of the child’s future while the other parent controls the day-to-day physical upbringing of the child.
- Joint Custody – slightly different from split custody, this usually happens when the Court directs both parents to share responsibility and authority with respect to the child. The implication of this is that both parents are involved in the physical sharing of custodial rights over the child as well as participating in decisions affecting the child’s life such as education and medical problems amongst others.
Joint custody does not necessarily mean equal or fifty-fifty sharing of time since each case depends on the child’s age, parent’s availability & desires, among other factors. Before an order of joint custody is made, the Court must ensure that the parents would cooperate with each other, otherwise, such an order would be ineffectual.
- Temporary Custody – this occurs when the custody of a child is awarded to a parent temporarily pending the outcome of a divorce proceeding. This power can be exercised where during a matrimonial proceeding, a dispute with respect to the custody, guardianship, welfare, maintenance, advancement, or education of the children of the marriage arises after the proceedings for the principal relief have already been instituted.24
The Petitioner or Respondent may make an application for an interim order of custody pending the final determination of the Petition. The application may be made ex-parte in cases of extreme urgency or on notice to the other party. In cases of extreme urgency, an oral application may be made subject to the leave of court before the ex-parte application or application on notice is made. - Third-Party Custody – this type of custody plays out where the court places the child under the custody of a third party, other than his natural parents, either permanently or as an interim measure if it considers this to be in the child’s interest pursuant to the provisions of section 71(3) of the Matrimonial Causes Act. This order will be made if it is either obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the child or where neither of the parties to the marriage has applied for the custody, or where in the opinion of the court, neither of the parties to the marriage is a fit and proper person to have the custody of the child.
The Courts, in making this all-so-important decision, in determining who takes custody in divorce proceedings, are mindful of the BEST INTEREST OF THE CHILD vis a vis a number of considerations:
a. Age and sex of the child
b. The Wishes of the child
c. Education and religion
d. Conduct of the parties
e. Adequacy of arrangement for the child
f. Medical and psychological factors
g. Nationality of parent
h. Equality of parents
Conclusion
It cannot be overemphasized that the BEST INTEREST OF THE CHILD trumps and should trump every other consideration with respect to the custody of the child at the time.
[1] The Bible in Psalm 127:3-5
Written by Deborah Onafadeji for The Trusted Advisors
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