CUSTODY v Custody means the habitation care control
CUSTODY v Custody means the habitation, care, control and maintenance of a child of a marriage awarded by a Court to a responsible adult who may be the parent of the child or any other person. v Custody of a child connotes two things - (1) legal custody i. e. decision making authority and (2) physical custody i. e. caregiving authority and an award of custody usually entails the two. v The Court can grant joint custody to the parents where they both share the legal and physical custody of the child. It can also grant divided custody by which each parent has exclusive physical and legal custody with visitation right on the other. An order of custody is not final as it does not disposes the parties of their right, the Court per section 71 of the MCA gives the Judge the discretion to vary, suspend, modify or rescind the order.
PRINCIPLES THAT GUIDE AWARD OF CUSTODY The Supreme Court in Williams v. Williams (1987) All NLR 253 espouse the guiding principles for the award of custody as contained in Section 71 of the MCA. ü The welfare of the minor is the first and paramount consideration for the award of custody. ü It is advisable as a general rule, to grant custody of a child of tender age to the mother unless there are factors that would make it otherwise. ü The wishes of an impeachable parent stands first. ü The mother and father have and share equal rights and authority to the custody of a child. The mother as a rule, does not have nor enjoy custodial right over a child beyond other relations, at any rate where the father is alive and willing to support the application of such relations. ü While the welfare and interest of the child is the paramount consideration, it is not the sole consideration, the conduct of the parties shall be countenanced. ü The adultery of a party is not necessarily a reason for depriving that party the custody unless the circumstances of the adultery makes it desirable. Williams v. Williams (1987) All NLR 253. ü All the circumstances must be considered holistically. In Kolawole v. Kolawole (1989) All NLR 253. The Court refused to grant custody to a mother who had attempted killing the child while in Okafor v. Okafor (1976) 6 CCHCJ 1927 the Court refused to grant custody to a mother who had not physically seen the child for almost six years except in photographs. ü In Oyewole v. Oyewole [1987] 2 NWLR (Pt. 56) 239 the Court held that custody of male children should be granted to their father because within African (Nigeria) context, the father's abode, is the home of the male child and no matter how long, he has been away from it, he will come to it one day.
DISCRETION OF THE COURT IN AWARD OF CUSTODY While the interest/welfare of the child is the paramount consideration, Section 71 (1) of the MCA, gives the Court discretion to make order in respect the custody, guardianship, welfare, advancement or education of a child as it thinks fit, the discretion which must be exercised judicially and judiciously. This discretion, once exercised by the trial court, only it was arbitrarily exercised, it will be affirmed by the appellate Courts. Interim Orders An order for custody, guardianship, welfare, advancement or education of a child (ren) of the marriage may be made either by a petition or raised in the answer to the petition, or after institute proceedings for a principal relief (e. g. divorce or judicial separation) either party may bring an application for interim order to be made. Unless ordered otherwise, 14 clear days must lapsed between the time the application was served and the date for its hearing.
ORDERS WHICH MAY BE MADE ØThe Court may award custody to either of the parent, allowing the other reasonable access to the child. ØThe Court may place the child, in appropriate cases, under the custody of a third party other than either of the parent, if they are not fit and proper persons. In such a situation, they are both allowed reasonable access to the child. What circumstances do you think will necessitate giving custody to a third party other than the parents? ØWhere access is granted, it is a right that inure the child because, it is needed for its emotional well being and not really a right of either of the parent thus, the paramount consideration for granting same is the welfare of the child and not the parent. Kindly Note: ØAn order for custody or access may be enforced by attachment, committal for contempt of court or the issue of writ of sequestration.
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