The question I get asked the most is ‘Who gets custody of a child after a divorce in Nigeria?’ There is no hard and fast that favoring either parent. People seem to think all child custody matters in Nigeria will be decided in favor of the father. While it is true that under some customary law systems the father is privileged in custody matters this is not uniform or universal and does not apply to any statutory marriage under the Matrimonial Cause Act.
Under Sharia law custody is usually granted the mother; under Yoruba customary law, mothers are granted custody of female children and fathers of male children. In Igbo customary law custody is of weaned children is usually given to the father. Mind you Nigeria has numerous ethnic groups and customary laws vary broadly.
For a marriage to be subject to customary law the ceremonies for consecrating marriage under that particular system of customary law must have been complied with and the bride price must have been paid. If these conditions have not been met any custody of any children of the relationship will be automatically awarded to the mother and or her father.
A statutory marriage that comes under the jurisdiction of the Matrimonial Causes Act must be celebrated before a licensed marriage officer outside Nigeria or registrar of marriages within Nigeria between a man and woman that are previously single. Many foreign women have been manipulated with threats that they would lose custody and be deported forcibly.
Section 71 of the Matrimonial Causes Act is very clear that custody should be decided based on the child’s best interest. Case law has upheld this principle but mothers that want custody are held to very strict proof that they can maintain the children without regard to the courts powers to grant maintenance orders.
Mothers that have come to me for representation frequently describe the arduous proof they are made to provide that they have a personal residence, job and income before they are given custody. While it seems logical and fair that mothers are encouraged to have a job, child maintenance is supposed to provide the necessary financial support that she may lack to take care of her child or children.
If it’s in the best interest of the family that the spouses separate or divorce such as in cases involving domestic violence the spouse granted custody should receive maintenance and support from the other. Both parents should be and should remain financially responsible for their offspring.
However if either spouse was by mutual agreement or otherwise the primary care giver and did not work outside the home during cohabitation and is given custody in a divorce it would be questionable whether requiring that spouse to now work would serve the interest of the children.
Will the court automatically grant custody to a father that is also a violent drug addict and regularly disappears for months at a time? No. Will the court grant custody to an abusive man that believes his wife is a witch and takes his children for strange midnight rituals and exorcisms? No.
Likewise the court will not automatically grant custody to a mother if she is a drug addict or a dangerously delusional religious zealot. Case law shows the child interests being paramount. Custody hearings are getting more sophisticated and judges are asking insightful questions about the best interest of a child in any given circumstance.
Generally custody of very young children is awarded to the mother. There is also a preference for awarding custody of male children to the father and female children to the mother but again this is not a hard and fast rule and circumstances of each case determine the best interest of the child/children.
Evidence of misconduct and moral depravity could however tip the courts judgment against the offending party when awarding custody. The case law needs to be carefully reviewed to determine what the courts consider moral depravity of sufficient seriousness to otherwise deprive a parent of custody.
The Child’s Rights Act of 2003 makes provisions for protecting children during a divorce but child custody law remains a product of Nigeria’s marriage laws and it remains to be seen how the CRA will be read and enforced.
For more on Nigerian case law and decisions on custody here.
Have more questions? Not sure if any of this applies to you? Follow this link to book a confidential consultation with me without going to a lawyers office.
Update 11 July 2022 – Under the Child’s Rights Act 2003 all custody issues henceforth come under this act. It has been domesticated in more than 26 states. Read the latest on custody under customary law here.
MzAgams 
376 responses to “Who gets custody of a child after a divorce in Nigeria?”
Good morning ma,
I need your urgent advice ma,
My story goes thus:
I met a guy who asked me out for a boyfriend-girlfriend relationship in 2004 but i refused him because I had no interest in him,then i just finished my secondary school at age 14.I came from a very poor background where my mum is the only support myself and three siblings have,this made me to join her in struggling to support,i do different menial jobs like making hair,selling petty things just to feed myself and my siblings,this is how we struggled for survival.In 2006,i got a teaching job where i was been paid 4,500 per month,with this income i registered for a coaching lesson to rewrite my waec and take jamb,as God would have it i made my papers and gained my admission into one of the federal universities in 2008 to study computer engineering,until this time,i still receive messages from this guy i met in 2004 for a relationship but still i resist.In 2009,after my year one in the institution,a guy in my department asked me out,as at then i was 19,i could not resist this coursemate of mine because i had feelings for me,we started the relationship and it was no regrets,so then i told the former guy to stop texting me that i already have a relationship and he said its not possible that he came before the new guy but i told him he is not to decide who i should love,its not a matter of who came first.After i completed my ND programme in the polytecnic in August 2010,i attended a church programme with my boyfriend where a seer told me that my present boyfriend is not the will of God for me and that the person i met before him is the right person,I became confused,I went to pastor,and my pastor said the same thing,So i decided to quit my relationship with my present boyfriend in september 2010,in the first week of october 2010,i called the former guy and he invited over to his house,still i wasnt really pleased with him but i decided to start loving him because of what the pastors has said,the following week,we had sex and i took in for him, i didnt know i was pregnant until december 2010,my parents were mad at me,they were dissapointed,because i was supposed to be on IT in preparation for my HND,but at long run they pardoned me and asked me to invite the guy who got me pregnant,this time i have gotten a teaching job with a reasonable salary,and by this time,the guy has finished service since 2010 but yet to get a job,the moment i told him about the pregnancy,he rejected me,he said ” he never loved me,that he only wanted to have sex with me and so i should get rid of it and forget him” but i told i will leave the baby since i have a job i will take care of the child,that he can leave me if he wants to,so when my parents invite him,he refused,after a month,he came with the parents and we were able to have a meeting,his parents said he cant get married now because he has no job,so i should just come and live with them and have the child but his mother said,i should stay in my fathers house because her church rules does not permit a man and woman living together without marriage,after so much arguments,myself and my parents decided to fund a small introduction and marriage so that i wont have the child out of wedlock,i told him about my plans and persuaded him to allow the marriage,that God will provide him a job and we can start our life from somewhere,at this time,i was already frustrated,i cant stand the shame of having a child whom the father rejected,so i was bent on him marrying me,but he still insisted he wont marry me,then he begin to say he doesnt love me,after two months,he agreed to my plead,we had our introduction in march and got married in a state court in june 2011,i had my first child in july 2011.I was able to get him a job through a church member in one of the mobil filling stations as a supervisor just to make him happy and help him financially responsible,he has been working there since july 2011,eversince we got married,my mother inlaw has been the authority in my marriage,she insists we should not get our own apartment that she cant seperate with her son,she doesnt allow me work,all I do is to sit my baby at home,cook,wash clothes.plates,run errands for the family,i couldnt even pay my family a visit,this was how i lived until i made up my mind in january 2013 to flaunt my mother inlaw’s order and go in search of a job,i got a teaching job with a salary of 20k plus evening lessons,i also engage myself in home lessons,i started saving so that i cant get an accomodation and persuade my husband to leave his fathers house,in the month of may,we informed my mother in law about our leaving and she took it up against me that i am a witch that my mother has given me charms to be controlling my husband and that is why i want to take her son away from her,that it is not possible and that his son is not going anwhere with me,this resulted into a physical fight between me and my brother-inlaw and he threw all my things out,so i left with my son back to my fathers house,because of my son’s upkeep,i didnt resign from my place of work which was was five houses away from my father inlaws house,after three weeks i left my husband’s house, my husband came and apologise to me that i should come back but i told him i wont return until he gets an apartment,he gives his income to his mother,he doesnt take any financial responsibility on me as a wife,he insults my parents as he wish, he doesnt even regard me but amidst all these i still endure because i dont want my son to suffer single parenting.One evening in the month of july 2013 while i was going back home from work,along a narrow estate in abule-egba,I was raped,i couldnt tell my parents when i got home because i dont want to add to the problem on ground,so the following day when i got to work i took permission and went to doctor for treatment,this pains and wound became unbearable for me but i had no option than to endure it.The following month,my mother in law called me on a saturday afternoon to come so that we can settle issues,so i went after church on sunday evening even when i wasnt really pleased with their family anymore considering all i have went through in their hands,when i got there she served us rice and plantain with my brother inlaws and my father inlaw,after eating i was expecting my husband to be present since its a sitting for settlement,but my husband was at work,my mother inlaw told me she has just invited me trickishly to collect my son,on hearing that from her,i felt sad and i told her its not possible,there was a heated arguement but i escaped with my son,then that day i made my mind that i will never go their house again.few days after i began to fall sick, didnt know the cause of the sickness,it was after some test,we found out i have been given a slow poison that will kill me slowly,with God’s grace upon me after 4months of the trauma and life threating sickness,i survived,by this time of the sickness,i have lost my job,my recovery i took a step to file a divorce and free myself from my life-threatening marriage,then i begin to receive different advices to be prayerful,hopeful and all sorts of yoruba culture etiquette as regards marriages and its shortcoming. Now am at a cross-road,after so many thinking and thinking, i forgave my husband and his family and decided to continue with him, in january 2014,we got an apartment(a room self),for two different times in 2012 that i have taken in,my husband will tell me to go for an abortion that he is not ready for another child,so after we came back together in january 2014, i didnt allow him to have sex with me because i didnt want to go for another abortion,but he pleaded and promised to take care of me this time and accept it if i take in,in april 2014 I was given admission to study computer science in one of the federal universities through direct entry because i already applied for the admission in april 2013. At the time i was preparing for school,i was already pregnant and my husband supported and told me to help him look for job so that we can relocate to my school enviroment,i was happy that one day i will have a happy home,i left for school and after some months,after which i have put to bed my second child,my husband was called to start a job in ife, when his mother finds out she turned everything upside down,my husband stopped calling,he stopped sending money for my baby upkeep and myself and finally he told me to quit schooling and come back to lagos otherwise i loose the marriage again.I couldnt cope with upkeep of my 9months baby anymore since there was no financial support from my husband, so i went home to plead with my mother inlaw to have mercy on me, but she refused me,she told me to drop my baby and leave her son alone,by this time,my first child was already with her and my husband has packed out of our rented apartment back to his fathers house. She collected the child from me and went away. Ever since last year august,i have not set my eyes on my two children,my husband doesnt answer my calls, i have been alone like i never had a companion,anytime i travelled to lagos to see me my children,they will denie me access and tell me to go to court.
Dear ma,this is the summary of my affliction, what do i do?
Now am still in school,i still have two more sessions to graduate,should i quit schooling for this marriage to a man who doesnt love and care for me? Should i file a divorce and start my life afresh? If i file a divorce,can i be given access to my children pending the time am still in school and when i graduate and get a job,can i still fight for my children custody? these are all the questions i need an answer to. please ma help me out, all these situations around me are getting me freezed.
Finish your school. Get a job. Rent a place. Then go make a report first to social welfare department and then to the Human Rights Commission to have access to your children BEFORE you file for a divorce. And stop listening to pastors and prophets. Listen to that intuition that inner voice that already told you the truth when you are 14 and again when you were 19. That pastor ehn? God will surely not forgive him
How would a pastor ruin your life like this? Glad your are seeking education. This is just so painful