MzAgams

This is a tough one. When the court gives you custody or access and your spouse or co-parent refuse to honour them what do you do? Under normal circumstances it should be easy. Ignoring a court order is contempt of court and the court can issue a bench warrant for the arrest of the offending party. Now when that party happens to be someone that even the police are reluctant or afraid to arrest, then what?

The recent case of Precious Chikwendu is informative. According to media reports ‘various court suits have granted Chikwemdu access to her children, who are all below the age of eight.’ Yet despite the court orders Femi Fani Kayode the father of her children (she has alleged that they are not legally married) refused to let her access or see her children. Until recently. On Saturday 4th of June 2022 Ms. Chikwendu (who goes by the name SnowWhitey on social media) finally got to see her children after 2 years of separation. It’s unclear whether this visitation was in response to the court orders or merely the magnanimity of FFK, as he is popularly called. The details of the reconciliation have remained private. Ms. Chikwendu herself has alluded to some sort of rapprochement between the parties, both of whom have praised each other in their Instagram posts for allowing the ‘playdate’ to happen. In her replies to some comments that questioned why she would publicly praise FFK for giving her what is her right she said that their agreement is private.

This case is an incredibly regressive for women’s rights in Nigeria. It would appear that despite the court orders a man who does not want to give his ex-wife or baby mama custody or access to her children cannot be compelled to do so by the courts. This does not come as much of a surprise considering how frequently the Nigerian regime and its leaders ignore court orders generally.

The Justice Reform Project (JRP) have called that the persistent abuse of power by public officials in Nigeria an aberration made a  statement in response to the detention of Omoyele Sowore in 2020. The statement read in part, “It is now impossible to ignore the persistent disregard by the current administration for the rule of law. This is particularly exemplified by its frequent disobedience of Court orders relating to bail of Nigerians in criminal proceedings initiated by the Federal Government. A government outside the law, is no government at all. Both at home and abroad, this badge of shame stains our collective national consciousness and makes a daily mockery of our selective adherence to the rule of law.”

Many Nigerian men still think of themselves as ‘owning children,‘ a hangover from customary and tribal laws that treated children as chattels and gave men possession once they have paid the bride price for a woman. I have written about it previously here and here and here. The bride price was never payment for the women, merely payment for the fruit of her womb. In many tribal areas when a women left her husband for any reason she also had to leave the children and was not entitled even to visit them or them her. This regressive and inhumane practice has been ruled repugnant in a number of Supreme Court judgements in Nigeria. Unfortunately they still persist and many men not only enforce it when they are separating from their wives they also use it to coerce women to remain in marriages they would rather leave.  

In 2013 a man named Levi Egeneonu, aka Bernard Nkem, resident in the United Kingdom, abducted his three children while the family was on holiday in Nigeria without the knowledge of his wife, Ijeoma Egeneonu.  Despite repeated orders  by U.K. courts that he return the children, he refused to do so and rather served 30 months for contempt of court. He tried to claim that the U.K. courts should not have been involved and that obeying the order of the U.K. court would amount to disobeying the order of a Nigerian court that had granted him custody, but a valid order of the Nigerian court was never produced to the satisfaction of the U.K. courts.

“None of the many judges who have heard Mr Egeneonu has been persuaded that such an order could provide a genuine excuse for his disobedience of the orders of the High Court”.

Egeneonu v Egeneonu [2018] EWCA Civ 1714 (18 July 2018)

In my practice as a family law and divorce lawyer I have known of many cases where men who are normally resident abroad chose to file divorce and or custody proceedings in Nigeria because they believe that the Nigerian courts will be more favourable to them. More than that they also believe that they can manipulate and influence the course of justice in Nigeria in their favour. One of the key issues that comes up at times like this is whether they are actually domiciled in Nigeria. Domicile has been interpreted in a variety of conflicting ways.  Domicile for the purposes of matrimonial causes means that the petitioner and the respondent have lived in the place where they are filing the petition for at least one year. Petitioners have used a variety of ways to confuse the court and to establish residence. This has had most unfortunate consequences, mostly for women and children. Rarely do men who claim custody actually care for the children themselves. Usually they leave the children to  untrained nannies, family members and strangers. The most infamous case so far involved the former head of state Olusegun Obasanjo. After divorcing his fist wife Oluremi and taking the children from her one of them died in his care. I have written about this previously here and here. Coincidently, FFK has referred to Obansanjo as his mentor or godfather or some such like. Then again maybe it is not a coincidence after all, but two birds of a feather. 

Although Ms. Chikwendu has been granted access to her children, the effect on them of the separation is unquestionable. It may not become evident for a long time and may it may never heal. 

“Disruptions to the parent-child attachment are so unsettling to children, even those who were maltreated by their parents, that they result in negative socio-emotional outcomes ranging from mild to quite severe.” 

 Lisa Berlin, University of Maryland, Baltimore

Children separated from their mother within the first two years of life exhibit significantly higher levels of aggressive behaviours and long term mental health problems. Separation increases the likelihood of psychiatric disorders, such as post-traumatic stress, anxiety as well as mood, psychotic or substance use disorders.What children of tender age deserve is not visit from their mother but to be with and live with their mother. Perhaps when they are older it might make sense to send them to their father or even to a boarding school but not when they are of tender age, which the Nigerian courts have very progressively defined as 7 years old in a number of cases. This rule has also been enshrined in the Child’s Rights Act. In one of my cases the judge asked the respondent father why he wanted custody of two female children under the age of 3. The judge refused to grant the fathers request and gave the mother unconditional custody  with normal visitation rights for the father. The courts did not fail Ms. Chikwendu, reports are that more than one court granted her custody orders. The failure was in enforcing the order against FFK. Like Obasanjo before him, he held himself above the law. It would be easy to say this was because of their position. But what of men like Levi Egeneonu? And what about the millions of Nigerian men that threaten their wives that they will take away custody of the children as a means to coerce them to stay in unhappy and even abusive marriages? 

Fortunately for a lot of women this simply does not hold true. A divorce will not automatically lead to a lose of custody. For women that have a means of income  and that can afford to rent a house or have a family house they can live in, this is very unlikely. Which is perhaps why the most controlling, insecure and abusive men try to ensure that their wives do not have an independent  source of income and isolate them from family. When a court is asked to decide on custody of children they will look for 1. adequate accommodation 2. adequate income to provide basics and 3. the age of the children. The younger the children are the less likely the court will be to give their father primary custody. It is important to note that while a court can grant a maintenance order for the children, it is was difficult to enforce as a custody order. Many men chose to punish their ex wife by withholding support even for the children, a sad state of affairs that does no one any good. The children regardless of who they live with are still your children. 

It is important to talk about parental alienation here. Parental alienation is when a parent deliberately influences the mind of a child or children against the other parent and it can be done by either the mother or the father and the court should take note of it either way. In one of my cases the father was seeking visitation, not custody whereas the mother who had abducted the children sought to keep yet away from him and poison their mind against him. This is often sited as the reason some fathers want custody. They are convinced that the mother will poison the mind of the children against them. But when they get custody they usually poison the children mind agains the mother. In Igbo we have a saying “Ahia made na Azu ka o ma Anya ya.” I translate it to mean that one can only accuse someone else of something one is intending to do or can do. Did my father poison my mind against my mother? He certainly did his best. While I like to believe that if he had known better he would have done better it is symptomatic of divorce in Nigeria and should be the focus of judicial consideration.

It is unfortunate that couples can be so malevolent towards each other. That is human nature, the courts exist to mediate and control our worst impulses for the common good. It is when a citizen ignores or abhors he law that chaos reigns supreme. And chaos we know causes irreparable damage.

Ms. Chikwendu’s response to being allowed to finally see her children has drawn mixed reactions from her fans and from he public. Perhaps the best thing to do if you are in a situation similar to that of Ms. Chikwendu is to negotiate, mediate and ‘stoop to conquer’ as some people have suggested. Yet she has previously alleged that FFK is abusive. In fact the allegations that she made against him are quite horrendous. He allegedly had her committed and held on psychotic drugs for 6 months, stripped her in front of his staff and beat her. It is unconscionable that 2 years later still is still being coerced by him in order that she might see her children. We must pray for her mental health. It should be noted that in FFK’s response to her court petitions he claimed that she is bipolar and schizophrenic and gave this as his reason for denying her custody. It is informative that there is no report that he at any time proved any of these mental health conditions. Conditions which are easily established. With the treatment that she has received at this hands it would not be at all a surprise if she doesn’t develop some mental health issues! Like post traumatic stress disorder for one. It is repulsive that the very conditions an abuser creates in a victim are used against the victim in a court of law. 

Opinions about the rapprochement between Ms. Chikwendu and FFK have been divided. Some commentators are upset they supported her. A petition she started on change.org garnered over 12,000 signatures. Her supporters judged and castigated FFK and feel used. But we must be empathetic and try to understand. The maternal instincts are just that, instincts, they are beyond our control. Despite media hyped stories of woman. that abandon their children, abandonment by mothers is the exception, not the rule. A mothers urge is to be with her children. In t his case it was obvious that w the courts could not enforce their own orders on the contemptuous party. What other options could she have exercised? Her triplets are three years old now and have been apart from her for two years, arguable the most critical years of their childhood development. It is a sad tale indeed. But let us also remind ourselves that it is a tale of the abuse of power, not a failure of the court systems. Nigerian courts have in the last few decades made rulings that contest the age old stereotype on Nigeria that a father always gets custody. This myth continues to keep countless women in dysfunctional marriages and needs to be unpacked. If you or anyone you know is having child custody issues do not be put off by the outcomes of this particular case.

Apply to the courts for custody if you have the grounds and the means to do so. Let it be that there is a court order that needs to be enforced rather than that there is none at all. And even if the court gave custody to the other parent and you do not agree with the order know that you can appeal. 

If you or any one you know has more questions on child custody you can book a private consultation with me here.