Judiciary
A constitutional lawyer, Mr Surgeon Ataene, says customary courts can determine child custody in certain matrimonial cases, contrary to popular belief.
Ataene said in an interview with the News Agency of Nigeria (NAN) on Wednesday in Lagos that child custody in matrimonial cases was not exclusive to special courts.
He emphasised that lower courts, such as customary courts, could handle custody cases, particularly when a marriage was contracted under native law and custom.
According to him, in cases where the marriage is valid and the bride price is paid, the father is granted custody of the children until they reach adulthood.
“Customary courts can actually delve into custody of the children of marriage in accordance with the native law and custom of the people who contracted the marriage.
“Several issues, however, come to mind; If the marriage was validly contracted by paying the bride price, then the father is granted custody of the children until they attain the age of majority and can decide for themselves where to go,” he said.
Ataene noted that the situation would be different where no bride price or dowry was paid.
“The scenario will be different if no bride price was paid, in which case the marriage lacked legitimacy ab initio.
“Children of this kind of marriage without payment of bride price will remain with their mothers,” he said.
Ataene said that since custody was given much preeminence in divorce proceedings, it became imperative that the welfare of the children of marriage was of paramount importance.
“The Supreme court in the case of Okwueze vs Okwueze (1989) 3NWLR pt109 at 321 stated clearly that’
“Whilst it recognises the superior rights of the father to the custody of the children, this right will not be enforced where it will be detrimental to the welfare of the children,” he said.
According to him, the court at all times takes it as its duty to ensure that whether father or mother entrusted with the responsibility of the children must be seen as capable of fulfilling their obligations to the child.
“Some states of the federation has made statutory provisions for this position.
“Finally, it falls within the purview of the court that dissolved the marriage to also resolve issues relating to custody,” he said. (NAN)
A.I
Nov. 27, 2024
Tags: Mr Surgeon Ataene
