Is the decision of a child on who should have custody absolute in Nigeria?

During proceedings on child custody, some people believe that it is the child who decides whether the mother should be in custody or the father. While this may play a pivotal role in determining Child custody. Such a decision by the child is not absolute and automatic. The court will still look at other considerations expecially what is in the best interest of the child. If the child is old enough to make rational decision on who should have custody, the judge will then ascertain if the decision is in the best interest of the child by putting some questions to the child. However where the child is not old enough to make decisions, the court may be reluctant to grant the wishes of the child. The reasons and circumstances where the judge can refuse will be discussed in this article.

Section 71(1) of the MCA provides as follows: “In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage the court shall regard the interest of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper”.

In the case of WILLIAMS V WILLIAMS (1987) 2 NWRL (Pt 54) 66 at 89 it was stated that ”the determination of the welfare of a child is a composite of many factors. Consideration such as the emotional attachment to a particular parent, mother or father; the inadequacy of the facilities, such as educational, religious or opportunities for proper upbringing are matters which may affect determination of who should have custody”.

It is pertinent to note that , in considering what is in the best interest of child, the court does not concern itself with matters like who, as between the parties is responsible for the breakdown of the marriage which has necessitated the proceedings for custody. While exercising its discretion for grant of custody, the court does not award custody to one party as a favour to that party or as punishment for the other party, who in the opinion of the court had conducted himself or herself badly. Whatever decision the court has arrived at must be for the interest of the child. This is because the conduct of parents should not be a punishment to the child.

WHO HAS POWER TO DECIDE WHO IS ENTITLED TO CUSTODY.

The provisions of section 71(1) of the MCA confers on the court an absolute discretion to determine what is in the best interest of children and make the appropriate orders that best support those interests. Under sub-sections (3) and (4) of section 71, these orders may include: orders to place children in the custody of persons who are not parties to the relevant marriage (if that option is in the best interest of the children) and grant access to the child by one or both parties to the marriage; or orders to grant access to children in the custody of one party by the other party.
The decision of the child to choose who is to have custody is also taking into consideration by the court where the child can make rational decisions. However this decision by the child is not automatic, it is still subject to the final discretion of the court to determine what is in the best interest of the child.

The discretionary power of the court also covers the situation where it can receive in evidence, reports from welfare officers on matters that are relevant to the custody proceedings before the court as provided for in section 71(2) of the MCA. The court has the power to adjourn proceedings to allow for time to prepare the report where necessary. The report of the welfare officers is expected to cover all aspects of the life and welfare of the child in question.

REASONS WHY THE DECISION OF THE CHILD IS NOT ABSOLUTE.

There are many reasons why judges do not automatically accept children’s wishes about custody. Here are some of the reasons;

(1) Children can choose to live with the parent who has promised them inappropriate benefits, a new car, freedom to do anything and some other benefits to influence the child’s decision.

(2) Children can choose to live with the parent they feel needs them. That puts the child into a parental role which is harmful. It is the parents’ job to take care of the children, and not the other way round.

(3) Children can choose to live with the parent they hardly know because they have a “fairytale” expectation about how wonderful that parent will be. That fantasy seldom turns into reality.

(4) Children can choose to live with the parent who has more money. If courts approved such a decision, materialism would become even worse than it already is. The law promotes the goal of putting money where the children are, not putting children where the money is. Financial requirements could be a consideration, and where both parties have sufficient money to take care of the child’s welfare, then the question of who has more would be frowned at by the court.

DESIRE AND WISHES OF THE CHILD.

The personal wishes and desires of children sometimes count in custody proceedings, especially when the affected children are old enough to make their preferences known to the judge or a Welfare Officer that has been mandated to interview the children concerning their preferences as between the applicants for their custody. In some cases, the judge in the custody proceedings, may interview the children privately in order to determine their wishes which he MAY OR MAY NOT give effect to.
In ODOGWU V ODOGWU (1992) 2 NWLR (Pt 225) 539, the Supreme Court held that the court could consult the child’s wishes in considering what order to make.

“It is correct to also note that If the parents are separated and the child is of tender age, it is presumed the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear the contrary is the situation- e.g, immorality of the mother, infections disease on the mother, insanity, and or her cruelty to the child. These are matters to be tried. Custody proceedings could even be adjourned to judge’s chambers where in informal hearing, the children’s view could be assessed along with those of the parents.” Per BELGORE, JSC. (P. 27, paras. C-E) in ODOGWU V ODOGWU SUPRA.
See also Ojo v. Ojo (1969) 1 All NLR 434, Apora v. Apara v. Apara (1968) 1 All NLR 241.

In conclusion while the child can decide who is to have custody, such a decision may or may not be granted by the court. This is because the court has the absolute discretion to grant custody to whosoever bearing in mind the best interest of the child. The child would also be interviewed by the Judge to know his wishes, and it is from here that the judge can decide what is in the best interest of the child.

 

Written by Mpi Elton Chizindu Esq

REFERENCE
MATRIMONIAL CAUSES ACT
JUDICIAL AUTHORITIES
FAMILY LAW By National Open University.