MzAgams

By Lesley Agams  |  MzAgams  |  Last legally reviewed: 3 August 2026

An updated 2026 guide to custody, parental responsibility, access and emergency action under Nigerian law.

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 rule that favours either parent. People seem to think all child custody matters in Nigeria will be decided in favour 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.

Who Gets Custody of a Child After a Divorce in Nigeria?

THE QUICK ANSWER Neither the father nor the mother automatically gets custody. The court must focus on the child’s welfare and best interests. Wealth, sex, lineage, payment of bride price, or blame for the breakdown of the marriage does not by itself decide the case.

Children are not property

The most important thing to understand is this: a custody case is not a contest to determine which parent owns the child. Nigerian law treats the child as a person with rights and welfare needs of their own.

For children of a statutory marriage, section 71 of the Matrimonial Causes Act requires the court to regard the interests of the children as the paramount consideration. Section 1 of the Child’s Rights Act uses the language of the child’s best interests as the primary consideration in every action concerning a child. The custody provisions of the Act then direct the court to consider welfare, parental conduct and the circumstances of the individual child. [1][2]

The legal question is not “Who has the stronger claim to the child?” It is “What arrangement best protects this particular child?”

What has changed since this article was first published?

When I first published this article in 2011, implementation of the Child’s Rights Act was still highly uneven. As at August 2026, the Federal Government states that all 36 states have domesticated the Act or enacted a state equivalent, in addition to the federal Act applying in the Federal Capital Territory. [3][4]

That is important progress, but it does not mean custody law and procedure are now identical throughout Nigeria. State laws can differ in wording and institutional arrangements. Gazetting, Family Court structures, procedural rules, funding, staffing and actual enforcement remain uneven. You must therefore confirm the exact Child Rights Law, court rules and practice in the state where the case will be filed.

A caution about statistics: I have not found a dependable, current public dashboard that identifies the gazette status, Family Court rules and implementation position of every state. Check the underlying state records.

Which law and which court apply?

The answer depends on the type of marriage, the state, and whether custody is being sought as part of a divorce or as a separate application.

1. Statutory marriage under the Marriage Act

Where the parents married under the Marriage Act and custody is part of divorce proceedings, the Matrimonial Causes Act is central. Section 71 gives the High Court broad power to make orders concerning custody, guardianship, welfare, education and advancement, but makes the children’s interests paramount. [2]

2. Unmarried parents or a separate custody application

The applicable state Child Rights Law will usually be important. Using the federal Act as the model, section 68 allows either unmarried parent to apply for parental responsibility and allows the parents to agree to joint parental responsibility. Section 69 allows either parent to apply for custody or access and permits the court to make or vary maintenance orders. [1]

Section 69 does not automatically give an unmarried mother sole parental responsibility or an exclusive right to make every major decision. It gives the court power to decide custody and access on the facts. The precise state provision and procedure must be checked.

3. Customary marriage

Nigeria does not have one uniform customary law. Customs differ among communities and states. Under many customary systems, paternal lineage has historically been treated as giving the father a superior claim, especially after a child is weaned. But even the Supreme Court has held that such a claim cannot be applied mechanically where it would harm the child. Evidence must be taken to determine the child’s welfare. [6]

Payment of bride price does not turn a child into property. A court does not award custody merely because a father says, “The children belong to my family.” The relevant custom must be proved where necessary, must pass the legal tests governing the validity of custom, and must be considered alongside applicable written law and the child’s welfare.

4. Islamic marriage

Custody under Islamic personal law involves its own principles concerning care, guardianship, age and parental qualification. Practice can also vary by school of law and state. A general internet article cannot safely reduce those rules to “the mother always gets custody” or “the father always gets custody.” Obtain advice from a lawyer experienced in the relevant Sharia court and state system.

What does the court consider?

There is no single mechanical checklist, but Nigerian decisions repeatedly examine the child’s actual life rather than parental slogans. Relevant matters may include:

• the child’s age, maturity, health and particular needs;
• the child’s emotional attachment to each parent and to siblings;
• who has carried the day-to-day responsibility for care, schooling and medical needs;
• the stability and safety of each proposed home;
• continuity of schooling, healthcare, community and relationships;
• any evidence of domestic violence, abuse, neglect, coercive control, substance misuse or exposure to danger;
• each parent’s practical availability, work arrangements and support network;
• each parent’s conduct, but only so far as it affects the child’s welfare;
• the ability and willingness of each parent to meet the child’s needs and obey court orders;
• the child’s own views, where the child is old and mature enough to express them safely; and
• a workable plan for contact or access with the other parent, unless contact would expose the child to harm.

Money matters, but wealth is not the test. A richer parent does not automatically win. The court can grant custody to one parent and order the other to contribute to maintenance. Love alone is also not enough; the court looks at how the proposed arrangement will work in the child’s daily life.

Does the mother automatically get a young child?

No. There is no absolute legal rule that every young child must be placed with the mother. Courts have, however, recognised that a child’s tender age, nursing needs, sex, stage of development and existing relationship with the primary caregiver may be highly relevant. Those considerations are factors within the welfare assessment, not a substitute for evidence.

Likewise, the father does not automatically win because he pays school fees, owns the family home or is regarded as head of the family. The law requires a child-focused assessment, not a reward for adult status.

Can both parents have custody or parental responsibility?

Yes. Depending on the facts and the applicable law, a court may make arrangements that preserve meaningful responsibility for both parents, while deciding where the child will live and how access will operate. Joint arrangements work best where the parents can communicate, exchange information, make decisions and protect the child from their conflict.

Where there is violence, intimidation, abduction risk, serious distrust or repeated disobedience of agreements and orders, an apparently equal arrangement may be unsafe or unworkable. The label “joint custody” should never be used to conceal an arrangement that exposes a child or abused parent to continuing control.

Can one parent simply take the child?

Do not treat a custody dispute as permission for self-help. Before a court order is made, both parents may have legal interests and responsibilities, but the precise position depends on the child’s status, the applicable law, existing care arrangements and the facts. Once a custody, residence, access or protective order exists, it must be obeyed unless and until it is varied or set aside.

Section 27 of the federal Child’s Rights Act criminalises removing a child from a person who has lawful custody or care against that person’s will. [1] That is a serious provision, but it should not be presented as though every parental disagreement automatically amounts to criminal child abduction. “Lawful custody,” existing orders, consent, destination, intention, immediate danger and the wording of the relevant state law all matter.

The safe rule: do not use force, threats, deception or school-gate ambushes. Obtain urgent legal advice and ask the court for clear interim orders.

What to do if a child may be taken or is in immediate danger

The correct response depends on the urgency and the evidence. The following steps are practical, but they are not a substitute for advice on your particular case:

1. Get urgent legal advice. A family lawyer can identify the correct court and apply for interim custody, access restrictions, a non-removal order, production of the child, or another appropriate protective order. An ex parte application may be possible in a genuine emergency, but no responsible lawyer should promise that an order will be granted “within days.”
2. Preserve evidence. Keep the child’s birth certificate, marriage documents, school and medical records, messages, emails, voice notes, travel information, photographs, police or medical reports, and details of witnesses. Record dates and events factually. Do not edit or manufacture evidence.
3. Report an actual crime or immediate threat. Where there is violence, a credible threat, breach of a court order, unlawful removal or another suspected offence, make a clear report to the police and provide the relevant documents. NAPTIP is not the default agency for an ordinary custody dispute; it becomes relevant where the facts indicate trafficking, exploitation or conduct within its statutory mandate.
4. Contact child-protection and social-welfare services. The State Ministry responsible for women affairs, social development or child protection may be able to provide a social worker, safeguarding assessment, referral or other assistance. Capacity varies considerably by state.
5. Notify the school carefully. Give the school copies of any court order and current written pickup arrangements. Ask it to document attempted unauthorised collection and follow its safeguarding and emergency procedures. A unilateral letter from one parent does not automatically extinguish the lawful rights of the other parent, so obtain a court order where the situation is disputed.
6. Seek legal assistance if you cannot afford a private lawyer. FIDA Nigeria states that it provides free legal representation to indigent women and children through branches across the federation. The Legal Aid Council and local legal clinics may also assist where the person and matter meet their eligibility and service criteria. [10][11]
7. Protect the child from the dispute. Do not use the child as a messenger, interrogate the child after contact, publish the child’s private information online, or ask the child to choose sides. Those actions can harm the child and damage your case.

Key Nigerian cases in plain English

Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 — The Supreme Court treated the child’s welfare as the first and paramount consideration and rejected the idea that either parent has a superior claim merely because of being the father or the mother. The decision remains a foundational statutory-custody authority. [5]

Okwueze v. Okwueze (1989) 3 NWLR (Pt. 109) 321 — In a customary-law dispute, the Supreme Court said the court must take evidence to establish what serves the child’s interests and welfare. A customary paternal claim is not to be enforced where it would be detrimental to the child. [6]

Nwosu v. Nwosu (2012) 8 NWLR (Pt. 1301) 1 — The Court of Appeal emphasised the equal legal interest of both parents and rejected discriminatory assumptions based on sex, ethnicity or the relative wealth of the parties. [7]

Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 — The court looked beyond assertions of love or financial capacity. The practical welfare of the children and the reality of their care remained central. [8]

Odusote v. Odusote (2012) 3 NWLR (Pt. 1288) 478 — The Court of Appeal restated that custody is a discretionary decision tied to the peculiar evidence of each case, including the child’s moral, physical and mental welfare. [9]

What evidence should you prepare for a custody case?

A custody case is won or lost on evidence, not outrage. Depending on the issues, useful material may include:

• the child’s birth certificate and passport details;
• the marriage certificate or evidence of the customary or Islamic marriage;
• school reports, attendance records and correspondence with teachers;
• medical records, prescriptions and evidence of who manages appointments;
• proof of the child’s current living arrangements and daily routine;
• evidence of financial support from both parents;
• a realistic proposed parenting, residence and access plan;
• evidence of violence, threats, neglect, substance misuse or attempted removal;
• records of compliance or non-compliance with existing agreements and court orders; and
• witnesses who know the child’s actual circumstances rather than merely repeating family loyalties.

Do not assume that secretly obtained material will automatically be admissible or wise to use. Let your lawyer assess authenticity, relevance, privacy, safety and evidential risk.

Frequently asked questions

Can custody be changed later?

Yes. Custody and access orders may be varied where circumstances change or the existing arrangement no longer serves the child’s welfare.

Can the parent without custody still see the child?

Usually, yes. Courts commonly make access arrangements unless contact would expose the child to harm or requires supervision or other safeguards.

Does adultery determine custody?

Not by itself. Adult conduct matters only to the extent that it affects the child’s safety, stability, care or welfare.

Does paying all the school fees guarantee custody?

No. Financial contribution is relevant, but it is only one part of the evidence. The court can separate custody from maintenance.

Can a person other than a parent receive custody?

In an appropriate case, yes. Nigerian law gives courts broad powers to protect children, and a relative or other suitable person may be considered where neither parental arrangement adequately protects the child.

Must a child testify in open court?

Not necessarily. The method by which a child’s wishes or evidence is obtained depends on age, maturity, the court, the applicable rules and the need to protect the child from further harm.

Custody is not a prize awarded to the “better” adult. It is a protective arrangement built around the life, safety and development of the child.

Legal information notice

This article provides general legal information, not advice on an individual case. Nigerian family law is affected by the type of marriage, the child’s circumstances, the state law, court rules and available evidence. Obtain advice from a lawyer who can review the documents and the current law in the relevant jurisdiction. Do not rely on this article to delay emergency protection or a court application.

While this blog post has attempted to explain custody process in Nigeria there can still be various outcomes and delays and questions. If you have more questions you can book a private consultation with me here.

About the author
Lesley Agams is a Nigerian lawyer and family-law practitioner who has written about divorce, child custody and women’s legal rights on MzAgams since 2011.

Related reading on MzAgams

• Nigerian Case Law on Child Custody
• Child Custody Under Customary Law in Nigeria
• Original article: Who Gets Custody of a Child After a Divorce in Nigeria?

For more on Nigerian case law and decisions on custody here.  

Read more on custody under customary law here.

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Sources and authorities

[1] Child’s Rights Act 2003. Sections 1, 27 and 68–75; official text hosted by the National Human Rights Commission.

[2] Matrimonial Causes Act, Cap M7 LFN 2004. Section 71, custody, guardianship, welfare, advancement and education of children of a marriage.

[3] President Tinubu’s Speech on Children’s Day, 27 May 2025. Official statement that the 36 states had domesticated the Child Rights Act.

[4] Federal Ministry of Women Affairs statement for the 2025 Day of the African Child. Confirms the Act as law in all 36 states and the FCT while stressing the continuing need for gazetting, funding and implementation.

[5] Williams v. Williams. (1987) 2 NWLR (Pt. 54) 66; Supreme Court judgment available through NigeriaLII.

[6] Okwueze v. Okwueze. (1989) 3 NWLR (Pt. 109) 321.

[7] Nwosu v. Nwosu. (2012) 8 NWLR (Pt. 1301) 1; see also the existing MzAgams case-law note.

[8] Nanna v. Nanna. (2006) 3 NWLR (Pt. 966) 1.

[9] Odusote v. Odusote. (2012) 3 NWLR (Pt. 1288) 478.

[10] FIDA Nigeria contacts. Information on branches and free legal representation for indigent women and children.

[11] Federal Ministry of Justice information on the Legal Aid Council. General mandate to provide legal-aid services to indigent Nigerians.