The issue of who has right to claim custody over a child has been an issue which the court over the years has handled with great importance as it's delicate by nature as the party mostly affected is a Child. The issue of Child Custody mostly arise in divorce or nullity proceedings.
According to Cambridge Dictionary, custody is the legal right or duty to care for someone especially a child after his or her parents have separated or died. Child custody is a legal terminology used to describe the legally recognized relationship between a parent or a person in loco parentis and a child, it is the right a person has over a child to care,protect,guide and provide for child in his or her custody which has legal recognition.
In discussing the issue of custody of a child in Nigeria, the concept would be considered from two (2) phases ;that is custody of Legitimate children and custody of Illegitimate children under the common Law,Matrimonial Causes Act and under Customary Law.
At common law,an illegitimate child is a FILIUS NULLIUS. Thus neither of the parents is strictly entitled to custody of the child. But in most cases, the mother is granted the child 's custody. In ENWONWU V. SPIRA, a child was born out of wedlock as a result of the association between the applicant who is a Nigerian and the respondent who is an European. As between the time of the birth of the child and the time of application for the custody for the child,the applicant did not take any step to support or educated the child. The court held that the mother who is the respondent has right of custody over the child until the child attain the age of 16 when he can choose who he wants to stay with.
However for custody of Legitimate children, under common Law a father has absolute right to the custody of his legitimate children under maturity.Even at his death, the mother cannot claim custody .This common Law position was altered by the TALFORD ACT 1839 and THE CUSTODY OF INFANT ACT 1872 which allows the court to grant a mother access or custody of her child under the age of 16. All these pre-1900 statute recognized the right of either parents to the custody of legitimate child.
Generally under customary Law in Nigeria,the father has an absolute right to the custody of his legitimate or legitimated children. On the death of the father, the right to custody is vested in the male head of the father 's family although the mother is responsible for the day to day care of the child. In ABIAKAM AND OTHERS V. ABIAKAM, the Court held that the father 's absolute right to custody will not be enforce Where the child is still of a tender age and require the care of the mother.
Under customary Law,child born out of wedlock to an unmarried daughter belong to her father or in his absence or death,to the mother of the child.But Where the family of the child's mother do not object,the child natural father may acquire parental right over the illegitimate child by ACKNOWLEDGEMENT Where this custom is recognized.
The Nigeria Legislature enacted the Matrimonial Causes Act to deal with some issue affect marriage and family relationship and one of the issue it address Is the issue of Child Custody. Prior to this enactment, the Nigeria courts is bound to apply the pre-1900 enactment. The Matrimonial Causes Act 1970 made provision for the custody of children of a marriage both legitimate and illegitimate .The application for custody of children must form part of a petition for matrimonial reliefs. In determining who has right to a child custody, Section 71(1) of the Matrimonial Causes Act provide that the court should regard the interest of the Child as the paramount consideration. The court may place the custody of a child on either the parents or a third party as the court think fit.Where custody is granted to either of the parents,the other parent is granted access to the child. Where the custody is granted to a third party,both parents are granted access.
The court has the discretion to determine who it's giving the custody of the child as long as regards is made concerning the Welfare of the child primarily. The conduct of the parties and the wishes of the mother and father is concerned but as secondary factor. In AFONJA V. AFONJA, the child prefer to stay with the mother than the father who keeps the child with his Sister during school session and reside with the child only during Holidays.The court held that it is in the interest of the child to stay with the mother where proper care and adequate care and attention would be given.
It is important to note that a parent cannot use writ of habeas corpus to recover custody of a child who the Law has given to the other parent.The court held this position in LAWSON V. LAWSON.
In conclusion, in determining who the court would not consider whether the claim of the father or any right of the father under common law or customary law but consider the the Provision of the law in Section 71 of the Matrimonail Causes Act which grant custody by considering the interest and Welfare of the child as the paramount importance.