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 met dis ibo gal while I was seeking academic admission into a university in the easthern part of nigeria..the seeming unfortunate futile attempt to secure d said admission brought me in close relation wt d girl.. She found dt she was pregnant after leaving to stay wt her parents in south west.. After going to see her parents. Her aunt offered that she stayed wt her. I had been solely responsible for her upkeep,medicals n otherwise.. Infact,great deal of exploitations were made frm me by the aunt. Owing to subsequent mal-treat from the latter, it was communicated n resolved wt her parents that she stayed with me( ma sis). Being a young guy, I exploited all opportunies just to maintain a good sense of care financially n otherwise borne solely.. I did this frm d time of conception to period after givng birth to the baby.. Thereafter, an arrangemnt was made between myself n her to relocate d latter to anther aunt of mine,, she consented.. Few months after, her family began to make serious attempt to retrieve her and the baby, although, between me and her, we agreed that the baby stays with my aunt in the event that she continues wt her academics .. All attempts by her family to retriev d baby was to no avail until one day,she sought to abscond with the baby. This attempt led to the resolution that she and the baby stays wt her family(mother) granting me unlimited access to the welfarism of the child and as a student, agreed to assist in d course with whatver token have got overtime. Though, my access to the child has been partial.. Currently, am a final year studnt n I wish in few years time to gt ma baby’s custody,, wot are my chances?
How do you intend to care for this child?
Continue frm where the grand ma stops.. Better education.. Intensive care, attention, recreation,healthy environment.. Obviously have never contemplated marriage of any sort wt the mother of the said baby. In few years to cm that I desire her custody, she shud b around 7yrs… By then, I envisage the grandma might come up with customary issues as to the custody. I dnt just wish that she stays there forever and besides, there is no marriage or cohabitation subsisting between us…
When you are ready for custody see a lawyer