INTRODUCTION:
The demand for child custody in marital disputes has become a critical and worrisome issue, especially when it involves legal implications. However, this study provides an in-depth analysis of all matters related to the custody of children under Common law and Islamic law in Nigeria.
Essentially, the type of marriage significantly influences the mode of separation or divorce between the parents and equally determines who has the right to their child’s custody. However, irrespective of the forms of marriage, whenever the matter of custody arises before a common law court or an Islamic court, what is paramount to both legal systems is to protect the best interests of the child.
It is worth noting that the issue of child custody in common law and Islamic law shares some similar features, but they are not entirely the same. The former, upon determining factors, emphasizes equal parental rights. At the same time, the latter fervently places the mother above the father and lays greater emphasis on the mother’s impact in the child’s upbringing, especially when the child is a minor, except in some circumstances.
CUSTODY OF CHILDREN UNDER COMMON LAW:
In Nigerian common law, the issue of Custody of a child is governed by the Matrimonial Causes Act 2004 and the Child’s Rights Act of 2003. Unfortunately, none of these Acts defined the word “CUSTODY”. Notwithstanding, the Courts and other authorities have defined the word.
The Black’s Law Dictionary defined it thus; “Custody of children is defined as the care, control, and maintenance of a child which a court may award to one of the parents as in a divorce or separation proceeding.”
According to KELLY, he opines that; Child custody is when a parent or guardian has legal and practical rights, duties, and responsibilities towards their children as a result of divorce or separation. It involves decision-making power and physical control over the child’s upbringing and welfare. Generally, child custody is made through court orders or mutual agreement between parents to promote the child’s best interests.
In the case of OTTI v. OTTI, the Court of Appeal considered it essentially concerning the control, preservation, and care of the child’s person, both physically and mentally. It also includes responsibility for a child regarding their needs, food, clothing, instruction, and the like.
WHO IS A CHILD?
This question has been answered by section 277 of the Children’s Rights Act 2003. The act defines a child as any person under the age of 18 years, emphasizing the need for special protection and care during this critical developmental stage.
RIGHT TO CUSTODY UNDER COMMON LAW:
Parents who were joined together under statutory marriage have an equal right to the custody of their child. Subject to the overriding principle provided under section 71(1) of the Matrimonial Causes Act 2004, the court shall regard the interests of those children as paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper. From the above, the court may place the child in the custody of either parent as it deems fit. See NWOSU v. NWOSU.
In ODOGWU v. ODOGWU. The Apex Court stated that
If the parents are separated and the child is of tender age, it is presumed the child will be happier with the Mother and no order will be made against this presumption unless it is abundantly clear that the contrary is the situation e.g. immorality of the Mother, infectious disease on the mother, insanity, and/or her cruelty to the child.
INTEREST OF CHILD:
The best interest of the child is a universal standard applied to every child custody dispute. It is statutorily captured in section 71 of the Matrimonial Causes Act, and sections 2 and 69 of the Children’s Rights Act.
However, the principle is not a fast rule, as it largely depends on the circumstances of each case, in DAMULAK v. DAMULAK. The court ruled that, “What constitutes the paramount welfare of the child in custody cases is a composite of many factors, such as emotional attachment to a particular parent, mother, or father, the inadequacy of facilities such as educational, religious, or other opportunities for proper upbringing.
What the court deals with is the lives of human beings and ought not to be regulated by a rigid formula. All relevant factors ought to be considered”. Also see Williams v Williams.
The Apex Court, Per Belgore stated in ODOGWU v. ODOGWU (supra) that,
Welfare of a child is not the Material provisions in the house – good clothes, food, air-conditioners, television, all gadgets normally associated with the middle class, it is more the happiness of the child and psychological development. While it is good that a child is brought up by complementary care of the two parents living happily together, it is psychologically detrimental to his welfare and ultimate happiness and psychological development if material care, available, is denied him.
However, there are some factors often considered by the court in custody cases, such as: Age and Sex of the Child, The Wishes of the Child, Education and Religion, Conduct of the Parties, Adequacy of Arrangement for the Child, Medical and Psychological Factors, Nationality of Parent, and Equality of Parents. See OYELOWO v. OYELOWO.
These were also the observations raised in ALABI V ALABI. By the court of appeal as;
- The degree of familiarity of the child with each of the parents (parties),
- The amount of affection by the child for each of the parent and vice versa,
- The respective incomes of the parties, education of the Child;
- The fact that one of the parties now lives with a third party, either a man or a woman, and;
- The fact that, in the case of children of tender ages, custody should typically be awarded to the mother unless other considerations make it is undesirable, etc.
In DAWODU v. DAWODU. The Court refused to grant custody to a mother who had no home of her own or private means to bring up the child while in OKIDE v. OKIDE. The court declined to award the custody of the child to the father due to the psychological well-being of the child.
TYPE OF CUSTODY:
We have found ourselves in a society where the father provides the material provisions, but the mother is the one who offers the love, care, and affection needed for the child’s custody. In custody cases, the court handles each type of custody differently and applies the one deemed most suitable.
- Joint Custody: Joint custody means that both parents have rights and responsibilities when it comes to the legal and physical care of their child. See WILLIAMS v. WILLIAMS.
- Split Custody: In this case, the court grants custody to one parent and care and control to the other.
- Temporary Custody: This is where custody of a child is awarded to a parent temporarily pending the outcome of separation or divorce proceedings.
- Divided Custody: This is a situation where the child lives with each parent for part of the year, with reciprocal visitation privileges.
- Physical Custody: This pertains to the residence of the child. It determines which parent or guardian the child will be living with on a day-to-day basis.
- Legal Custody: Legal custody refers to the power to make decisions for the child concerning education, healthcare, religion, and overall well-being.
- Third-party custody: the court may place the child under the custody of a person other than a party to the marriage, either permanently or temporarily, if it considers such an order to be in the child’s best interest. See OKOBI V. OKOBI.
CUSTODY OF CHILD UNDER ISLAMIC LAW:
Custody of a child in Islamic terms is “Hadhana”. It refers to the need or necessity for the child’s welfare and to look after the assets of a child who has not yet reached the age of majority. Hadhanah is also an authority responsible for caring for and educating individuals who are not yet adults or those who are adults but have lost their mental capacity.
Unlike the Common Law, Islamic law automatically grants physical custody of a child to the mother. This is because the mother is more compassionate towards the child. This position is consistently applied in cases involving a minor child.
In such instances, the mother has the priority right to child custody, provided she does not remarry. And the Father/husband at all times is responsible for their means of subsistence and life’s necessities.
This practice actually derives from Allah’s words in Qur’an 2:233;
Mothers who have given birth shall suckle their babies for a period of two years if deemed necessary to complete the course of breastfeeding. Upon the child’s father, whether normally married or in the process of a divorce, to provide both mother and infant with the means of subsistence and life’s necessities according to what is reasonable
And from the Prophet’s traditions, a woman came to the Prophet and said, “Oh Messenger of Allah!” I carried my son in my womb, suckled him at my breasts, and held him on my lap; yet his father has divorced me and wants to take him away from me. The Prophet replied: “You have more right to him as long as you do not remarry.”
PERIOD OF HADHANAH:
The period of Hadhanah under Islamic law comes to an end when a small child is no longer in need of services, can stand on their own, and can take care of their own basic needs, such as eating, dressing, and bathing. However, this period is varied and very essential.
From the period of toddler to seven years for a male child and nine years for a female child. At this stage, the mother is highly recommended to be in the custody of the child, as it is deduced from the above Qur’an provision and the Prophet’s practice unless there is any contrary to do so. The period after puberty, at this stage, the custody goes to the father. However, it’s essential to consider the child’s best interests and the parents’ ability to provide for the child.
Compassion and ethics also play a significant role in this decision. This was the Court’s decision in Nigerian case BILYAMIN BISHIR V. SUWAIBA MOHAMMAD. After puberty, if the child is mature and mentally stable, they can choose to live with any parent, but the mother’s right to custody is still preserved only when she has not remarried. Perhaps, these periods are supported by Haddiths/the Prophet’s traditions, such as: “Tell your child to pray when they are seven years old and beat them for leaving prayer at the age of ten and separate their beds”
CONDITIONS FOR MOTHER’S CUSTODY OF A CHILD UNDER ISLAMIC LAW:
In Islamic law, the mother’s right to custody is a vital one and is often given priority, especially for children of tender ages. However, some factors can affect this right without prejudice. Such as;
- if she is remarried to another man.
- mental or physical illness.
- if she is deemed unfit to possess the rights behaviorally.
Notwithstanding, all the schools of thought in Islamic law recognize the father’s right when the mother forfeits her rights to custody, or after the infancy of the child. This will happen when he is considered capable of providing for the child’s upkeep and maintenance. Furthermore, it is pertinent to know that the well-being and interest of the child who is cared for take preference over the rights of any parent, regardless of gender.
CONCLUSION:
It can be clearly understood under both legal systems that all laws guiding the award of child custody revolve around the interests of the children. It is the primary key and most crucial factor to be first considered in custody matters. Thus, Common Law deals with custody provisions divisibly and indivisibly, and it can give joint, divided, split, and temporary Custody, etc., insofar as it is considered to be in the best interest of the child.
While in Islamic law, whether a father is granted custody or not, he has a fixed responsibility to maintain over his child, which is not just limited to financial support but includes their emotional and physical well-being. Ultimately, under both Islamic law and common law, what is considered to be in the best interest of a child may vary depending on the specific circumstances and jurisdiction. In fact, it is fair to say that such interests are subject to the discretion of judges.
REFERENCES:
- QUR’AN; 2, VERSE; 233
- M7, Laws of the Federation of Nigeria (LFN) 2004.
- Act No. 26 of 2003, Child’s Rights Act, 2003.
- Kelly J B, The Determination of Child Custody, Children and Divorce 1994, 4(1) 121-142
- Otti v. Otti (1992) 7 NWLR (Pt. 252) 187.
- Nwosu v Nwosu (2012) 8 NWLR (Pt. 1301) 1.
- Odogwu v. Odogwu (1992) LPELR-2229 (SC).
- Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151.
- Oyelowo v. Oyelowo (1987) 2 NWLR (Pt.56) 239 at 35.
- Alabi v Alabi (2007) 9 NWLR (Pt. 1039) 297.
- Dawodu v. Dawodu (1976) 7-9 CCHCJ 201
- okide v. okide (2020)LCN/15301 (CA).
- Williams vs. Williams (1987) 1 NSCC 455 at 463 Lines 10-14
- H Government (2018) Working Together to Safeguard Children A guide to inter-agency working to safeguard and promote the welfare of children.
- Okobi v. Okobi (2020) 1 NWLR (Pt. 1705) 301.
- Badruddin, HA. 2018. Diktat Matakuliah Kompilasi Hukum Islam. Baidawi,
- Musnad Imam Ahmod page/6707.
- Ibn Rushd, Bidayat -al-Mujtahid, (trans. Eng.) Imran Ahsan Khan Nayazee UK: Garnet Publishing Ltd. 1996.
- Bilyamin Bishir v. Suwaiba Mohammad, Unreported Suit No: (KTS/SCA/KT).
- Sunnanu Abu Daudu page/ 418
About the Author:
Salaudeen Ridwan is an undergraduate law student with an unflinching passion for legal writing and research. He could be reached via: +234 703 859 8949 or [email protected]