Custody of Children in Family Law: From Paternalism to Best Interest 


The Black’s Law Dictionary[1] defines custody as: “the care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding. Custody involves legal custody (decision making authority) and physical custody (care giving authority) and an award of custody usually grants both right. In a divorce or separation proceedings between parents the court awards custody to  one of them, unless both are found to be unfit, in which case the court may award custody to a third party, typically a relative. In the case involving parental dereliction such as abuse or neglect, the court may award custody to the state for placing the child in foster care if no responsible relative or family friend is willing and able to care for the child.

The Black’s Law Dictionary [2]also defines Paternalism @ page 1163 as A government’s policy or practice of taking responsibility of individual affairs of its citizens.

The Court of Appeal also defined custody in the case of Otti v. Otti,[3] as:

“Essentially concerning control, preservation and care of the child’s person, physically, mentally; it also includes responsibility for a child in regard to his needs, food, clothing, instruction and the like…”

More recently in Nwosu v. Nwosu,[4] custody was defined as:

“The care, control and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision making authority) and physical custody (care giving authority), and an award of custody usually grants both rights.”

Premised on the above authorities, it can be deduced from the various definitions that the custody of a child goes beyond physically having control of a child as it covers the authority to make decisions for the child’s wellbeing in all aspects. It is also settled fact that a child is not a chattel which can be owned but a person who is legally recognized from birth as having rights and entitled to make claims although he/she may not be matured enough to take some responsibilities. The interest of a child is a paramount consideration in the issue of child custody.

“I think, it is apposite, at this juncture to resort to the position of the law on the right to custody of children in situation where a marriage has been broken down, and the husband and wife (father and mother) are no longer living together. In Okwueze v. Okwueze[5] (1989) the Supreme Court, when dealing with the right to custody of children of a dissolved marriage which was conducted under Native Law and custom, enunciated that under most systems of Customary Law in Nigeria, a father of a legitimate or legitimated child has absolute right to custody of the child. However, the Customary Laws recognizes that such absolute right of the father will not be entered where it will be detrimental to the welfare or well-being of the child’[6]

According to Kayode Eso JSC (as he then was) he posit in the above case inter allia:

…in any matter relating to the guardianship of children,

the interest and welfare of the children shall be the first

and paramount consideration…


Factors to be considered in determining the custody of a child:

In OBAHAYA v. OBAHAYA[7] “The principle of law is settled and which is that; in proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, the Court shall regard the interests of those children as the paramount consideration and subject thereto, the Court may make such order in respect of these matters as it thinks proper. See SECTION 71(1) OF Section 71 of the Matrimonial Causes Act[8]. Thus, in awarding custody of a child, the Court will consider the care of the child’s person; morally, physically, and mentally. Hence, the welfare and the interest of the child must be accorded paramount where an order of custody of the child is to be made. In fact, the welfare of children of a marriage is not only of paramount consideration but a condition precedent for the award of custody. Custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences.” [9]

In Odogwu v. Odogwu [10], the Supreme Court enunciated that if the parents are separated and the child of the union is of tender age, it is presumed that 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 for example immorality of the mother, infectious disease on the mother insanity, and or her cruelty to the child. For this purpose custody proceedings could even be adjourned to the judge’s chambers where an informal hearing of the child’s view could be assessed along with those of the parents.[11]

  1. I. Nwogugu, in his book on Family Law in Nigeria,[12] dealing with custody of children under Customary law put the position of the law succinctly thus:

Under most systems of Customary Law in Nigeria, the father has the absolute right to the custody of his legitimate or legitimated children. On the death of the father, the custody of the child is vested in the male head of the father’s family, though the mother has the day-to-day care of the child.

However, Customary Law recognizes that the father’s absolute right will not be enforced where it will be detrimental to the child’s welfare. For instance, where the child is of tender age, Customary Law requires that it should be left under the care of the mother. In such a case, the father’s right is merely in abeyance, and may be exercised when the child could safely be separated from the mother. ” Margaret C. Onokah, in her text[13] , wrote that: “Under Customary Law, a father has exclusive custodial right over the children of his marriage. This right extends beyond custody, to “ownership” of the children. Thus his right has been described as capable of transmission to his family members. The wife has no such rights over her children. During separation or on dissolution of a marriage under Customary Law, the father has custody of the children of the marriage. This exclusive custodial right of a father over the children of the marriage does not obtain under statutory marriage. In this latter, the Court determines which of the parents has custody of the children, ‘the paramount consideration being the welfare of the children themselves. This rule of Customary Law hinged on the fact that most Nigerian communities are patrilineal (a few being the opposite matrilineal) by reason of which children belong to their fathers’ lineage.

How can the right of custody of children be determined under the Customary Law? The answer to the foregoing question can be found in the case of Okwueze v. Okwueze[14]  wherein UWAIS J.S.C (as he then was) said:

“The only proper manner in which the custody of a child under Customary Law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child. Like the Customary Court, the High Court failed to do so. Its decision cannot, therefore, be said not to have caused a miscarriage of justice. Furthermore, the Court of Appeal made the same mistake since it agreed with the decision of the Customary Court which has been shown to have been misdirection. It too based its decision merely on the request made by the respondent in the Customary Court to have custody of the children and not on evidence adduced to determine the interest and welfare of the children” ” – per. IBRAHIM SHATA BDLIYA.

Custody of children in the realm of ancillary relief:

In OMOTOLANI v. BABALOLA[15] ( “The issue of custody of children under the Matrimonial Causes Act falls in the realm of an ancillary Relief. In respect of the propriety of its grant, the Supreme Court in the case of ADENUGA VS. ODUMERU[16] stated as follows: “Since the Jurisdiction of the Court is determined by Plaintiff’s Claim, the Court will not grant any Ancillary Relief not within the purview of the main claim.” Per Bage, JCA in EIGBE VS. EIGBE [17]



[1] Bryan A. Garner 8th Edition, 2004 @page412. It goes further, to elicit that we have constructive i.e legal control and we have Penal custody intended to punish criminal offender. Foster Parent (An adult who though without blood ties, cares for and rears a child.

[2] Supra

[3] (1992) 2 NWLR (Pt. 252) p. 210.

[4]  (2012) 8 NWLR (Pt. 1301) 1 p. 32 paras F-G.

[5] 3 NWLR (Pt. 109) P. 321 @ 334.

[6] (

[7] (2022) LPELR-57141(CA).

[8] LFN 2004.


[10] (1992) 2 NWLR (Pt. 225) P.539 @ 560

[11] Ojo v. Ojo (1969) 1 All NLR 434; Apara v. Apara (1968) l All NLR 241.

[12] 1974, (Reprinted 1985).

[13] FAMILY LAW, 2002.

[14] (1989) 3 NWLR (Pt.109) P. 321 @ 335

[15] 2021) LPELR-56369(CA)

[16] (2001) 1 SC PT. 1 PG. 72

[17] (2012)[17] LPELR 19690.” – Per UZO IFEYINWA NDUKWE, JCA.



Oluwole Solagbade is a Legal Practitioner and writes from Lagos State, Nigeria.

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