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?”
i am married with children, i recently got a call from a young woman i had had a casual relationship with and have not seen for 11 months claiming that that she has had a baby and that i am the father. there was never a hint of any pregnancy from her to me in the period between our last meeting and the phone call, despite having spoken to her on the phone on 2 occasions. .coincidentally, i and my wife had recently agreed to adopt a child, because of this i decided to see this woman even though i believed that the child was not mine,maybe i could adopt her child since she is not too educated and had no reasonable income. on meeting her, we agreed to do a DNA test to ascertain paternity before any further discussion….after 2 weeks, the DNA test came out with a 99,99 percent match that i am the father. after this and discussions with my wife, we resolved to adopt this child who is currently 3 months old. however, the woman in question has refused to agreed to this, nor does she let me know where she is staying with the baby, we only meet at pre arranged locations. i had investigator trace her to her abode, and its not good place. i do not even know who she is living with,(though she says its her aunt) i promised to set her up in school or business so she can reclaim her life, and even visitation rights, but she is still adamant. i have demanded to see her relatives,but she wouldn’t let me, this lady is about 25years and i am 44. she also states she does not want to marry me, even though i do not want that either. i am also no disposed to running a parallel family,especially as am concerned about the type of environment my son will be brought up. please what are my chances of getting custody of this child, i follow the legal process.
Your chances of getting custody look pretty good though I would say the child is too young to leave his mother for several years yet.
I would suggest that you go to the social welfare office and speak to some one there first. They can assess and recommend whether the environment is conducive to the child and they have the power to remove the child immediately if they feel there is danger. Do this before you file an action for custody. If you file first she will be able to evade you and the judicial system very easily and you may not find your child.
Note that custody and adoption are two entirely different things. My suggestion would be you file for custody where your rights as the father are recognized ab initio rather than file for adoption which would require the birth mothers consent. You really have no business with adoption. He is your son.