In the Nigerian society, divorce is an aberration based on cultural and religious standards and few people like to talk about it. But it is a fact of life and has several legal implications and cannot be waved aside because when it inevitably happens, there are many issues involved; who keeps the child? What happens to the jointly owned properties and money? Can they retain the same surnames?
If not well handled, such issues can lead to serious damage and crisis on all parties involved. When a couple with a child separates, the court has the power to determine which of the child’s parents would be given the right to care and maintenance of the child. This right is referred to as custody.
In exercising this discretion, the court primarily considers the interest of the child; age and gender of the child because generally, very young children are usually left in the care of their mothers. But in circumstances where it would not serve the interest of the child to do so, the court will decide otherwise, welfare of the child as anyone seeking custody of a child is required to set out the proposed arrangement for the welfare and upkeep of the child.
The fact that one parent is in a better financial position than the other does not guarantee custody. What the court considers is the sufficiency of the welfare arrangement proposed and not which arrangement exceeds the other. The court will also consider the conduct and lifestyle of the parents.
If a child has already been in the custody of one of the parents for a considerable period of time, the court may order that custody remains with the parent already taking care of the child, in order to prevent any psychological harm that the change of custody might warrant to the child. Also, the court may give the child the option of determining the parent he wish to stay with and for children born out of wedlock, the mother has a right to the custody of a child born out of wedlock to the exclusion of the natural father of the child.
There is also provision for joint custody with both parents sharing the responsibility and authority with respect to the child. Usually this would involve the child being rotated between both parents for an agreed period of time and each parent would enjoy the privilege to visit. Before an order for joint custody is made, the court must ensure that the parents would cooperate with each other, otherwise, it would be an order in futility.
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