Where disputes arise in a marriage or a marriage breaks down irretrievably, the children of
the marriage are always affected. There is hardly a matrimonial dispute where the child(ren)
do not feel the pinch of their parents’ angst towards each other.
It is however important to note that by Nigerian law, when it comes to matters about
children (persons under 18 years of age), the best interest of the child must be the primary
consideration.
Where issues relating to a child such as custody, guardianship, welfare, education,
advancement etc have to be decided by the Court, the fundamental principle that the Court
will apply in making its decisions on these matters is the best interest and welfare of the
Child.1 It is not the only consideration but it is the Number 1 consideration2.
How does one then determine what is in a child’s best interest?
In EGBUCHE V. EGBUCHE3, the Court of Appeal4 relied on the indicators set out by
the Supreme Court in WILLIAMS V. WIILIAMS5 for determining the welfare and best
interest of a child as:
(a) the age of the child
(b) the sex of the child
(c) the degree of familiarity of the child with each party
(d) the amount of affection between the child and each of the parties
(e) the position in life of each party
(f) education of the child
(g) siblings should not be separated
In ODOGWU V. ODOGWU6, the Supreme Court provided further perspective on
the meaning of “welfare” of a child when BELGORE JSC said:
“Welfare of 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 of the happiness of the child and his psychological development.”
The Court will therefore analyse the specific facts and circumstances of the particular
case in the light of these parameters and take a decision.
Applying These Principles
Dear parent, you may neither be a lawyer or a judge, but you now know the Court’s primary
considerations when it comes to decisions relating to children.
If your marriage is peaceful and thriving, you can apply these principles as a couple to your
decision-making concerning your child(ren). You can prevent disputes if you do.
If you are dealing with a matrimonial dispute or are already divorced, consider applying
these parameters to assess your own actions towards your (former) spouse and in relation
to your children.
For example, ask yourself if it is in your child’s/children’s best interest to:
– deny your spouse/the other parent access to them;
– keep telling them negative things about the other parent;
– withhold funding for their upkeep because it has to go through the other parent, and so on.
Professional Guidance
Professional guidance in these matters remains important as a seasoned family lawyer can
be of invaluable assistance, helping you negotiate and apply these principles to minimize
the impact of marital disputes on your children. Your lawyer can also assist you in seeking
judicial intervention where conflicts are unavoidable.
Conclusion
Overall, it is possible for parents to reduce matrimonial or custodial conflicts and the
attendant emotional toll on their children if each parent prioritises the best interest and
welfare of their children when making decisions.
Dear dad or mom, act in the best interest of your child today.
Sincerely,
Mobisola Odimegwu
Lead Counsel
P.S:
Do You Know that your Child has legal rights and responsibilities?
Read our thoughts here:
LinkedIn: https://www.linkedin.com/feed/update/urn:li:activity:7200891093154967554
Facebook:
https://www.facebook.com/share/p/c3Mr5ryU9bXnarDh/?mibextid=oFDknk
Footnote
[1] Section 71(1) of the Matrimonial Causes Act of 1970 and Section 1of the Child Rights
Act of 2003.
[2] For disputes about child custody, other considerations such as the equality of rights of
both parents in relation to the child and their conduct, can be considered by the Court.
[3] (2015) LPELR -25868 Page 36 Paras B-E
[4] Per NIMPAR JCA
[5] (1987) 2 NWLR (PT.54) 66
[6] (1992) LPELR 2229 SC Page 30 para B – C