I’ve received a lot of enquiries on custody of children in Nigeria and decided to write an update with some decisions made by the courts.
In Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 – the court of appeal held –
On the right of parents over custody of children of a marriage
The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a right to protect that legal interest.
On Equal Rights of parents over custody of the children of the marriage
In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.
One of the questions that the court of appeal considered was whether or not the appellant (mother) had a right to take the children away from the matrimonial home before a formal order of custody made by a court of competent jurisdiction to determine the issue of custody.
The respondent (father) had asked an Owerri High Court to declare his wife did not have the right to remove the children from their school and relocate then elsewhere without a prior order of the court. The court of first instance sought to compel the mother to return the children till a determination of custody.
The mother appealed the judgement and her appeal was upheld. The court cited the previous Supreme Court ruling in Williams v. Williams (1987) that held both parents have the same right to custody of children pending a custody hearing.
“The law would be an ass indeed if a parent who has inherent legal interest in the children can’t do something to protect he children before the law can take its course” said Ogunwumiju JCA in his lead judgement in Nwosu v. Nwosu.
The court upheld a mother’s right to remove herself and her children from the matrimonial home in the event of breakdown of the marriage, threat or fear violence and maintaining status quo ante bellum pending matrimonial proceedings.
Counsel for the respondent (father) went on to argue the children of the marriage were of ‘Igbo extraction’ and their father ‘rich and willing to have them around’. The court held that “the reasons given by the learned trial judge in arriving at the conclusion that the appellant (mother) had no legal right to take the children from the matrimonial home were unconstitutional”
“I have no hesitation in arriving at the conclusion that these declarations of the rights of the parents in relation to these children were based on a wrong premise which is that the rights of a very rich father are superior to the rights of the less affluent mother who is from a different tribe. There is discrimination on the basis of tribe, sex and financial means.” – Ogunwumiju JCA
In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that “Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”
If you would like to know more or you have further questions you can book a consultation with me here.
MzAgams 
29 responses to “Nigerian Case Law on Child Custody”
I stumbled on this blog while searching for child custody rights,I must confess you are doing great. Please I have a son who is three years old born out of wedlock though the mother has a boy whom she also bare out of wedlock.i know one would think me stupid dating a girl who has a son outside marriage. The issue is that I thought to settle down with her when she told me that she was pregnant because she seems good. but after putting to bed I noticed she changed and started giving me conditions and making demands that is crushing my finances. I discovered she was being influenced and manipulated by her mother then I called it a quit. All this happened between 2014&2016 it was by 2017 that I broke up with her though still paying my sons school fee,health,clothing all this are not part of the 30,000 that I give her monthly for feeding and their well being. 2017 was not fair on me,business was no longer how it used to be and it started telling on my finance so I decided to take my Son in order to reduce my financial burden but the girl and her mother refused that the boy must stay with them, saying that another woman will not take care of him as would the mother, then I decided to reduce the monthly 30,000 to 20,000 she refused that it will not be enough. mind you the mother is divorced and Jobless and the girl just finished her apprenticeship from a tailoring house which I enrolled her. Now my question is, Can I take the boy away from them, if yes how?
Or should I abandon them but if I do she will come disturbing me because they moved into the precinct that I am staying recently so distance is no barrier and she knows I don’t like disturbance.
Don’t abandon them. Continue to support your son to the best of your ability. If you can no longer afford the earlier monthly amount and she refuses to accept less go to the social welfare office nearest to you and have them mediate between you and the mother. The child is still tender and most courts will still rule that the mother should keep him till he is at least 7 or 8 years old unless she is a danger to the child or otherwise not a good parent. The best interest of the child is the deciding factor. Be a part of your sons life, bbd with him because the court will also look into that if you should in the future decide to contest custody.