Editor’s note: Akinyemi Ayinoluwa
"It seems to me that order for custody must have in view the opportunity of sound education as well as physical and mental welfare. A parent who will deny these to his or her child is not worthy of an order for custody from the court … The fact that the mother had the custody would not prevent the father from making plans for the infant’s education." – Hon. Justice Andrew Obaseki rtd, justice of the Supreme Court of Nigeria.
"I’m a pretty hands-on dad and make the most of my custody. I take care of my little one whenever I can, and she determines what I can do and where I can do it," says Paul McCartney of famed the Beatles band. In this wise, entertainers are no strangers to custody wrangling. When this makes the news, it begets another opportunity to examine the subject. It could be riotous when anyone attempts to deprive another of custodial rights, or when the supposed mother of a child recants that her husband/partner was never responsible for the conception of her child. When parties are well-heeled and play in the same league of high society, a mad rush to decimate each other ensues. Enter the Davido and the Sophie Momodu debacle. But, again, we must first understand the legal regimes around child custody in Nigeria.
Between Moronke Temilola Fadoju and Izuchukwu Ehiemere
Under the Nigerian law, child custody refers to the care, control, and maintenance of a child often sanctioned by the courts, during divorce or judicial separation proceeding. Nevertheless, courts also grant custodial orders in cases of unmarried couples.
I recall that the sensational custody dispute between Moronke Temilola Fadoju and Izuchukwu Ehiemere surfaced on blogs and other news outlets on Wednesday, October 8, 2014. Their two-year-old baby Liya, born out of wedlock, was alleged to have been kidnapped in the United Kingdom by Izuchukwu’s mother and brought to Nigeria. Expectedly, stories emanated from both parents justifying who was better equipped to cater for the infant. It was a media spectacle until a court in the United Kingdom ordered that the baby be returned to the UK.
This alleged abduction of Liya betrayed a desperate resort to self-help. Without recourse to constituted authority, a grandmother, acting in the interest of her son, tampered with the custodial rights of a biological mother. Self-help, in legal context, refers to obtaining relief or enforcing one’s right without going through legal processes. It is argued that self-help is legitimate as long as it does not "disturb the peace" or violate any other law. But, is self-help justifiable under any guise?
Between Davido and Sophie Momodu
A more recent example of resort to self-help can be found in Davido’s tussle with Sophie Momodu – and her uncle, Dele Momodu. It was every bloggers’ delight, given his privileged position, which guaranteed traffic to blogs. Davido, a 23-year-old Nigerian music superstar, had a media brawl (characterized by accusations and counter-accusations) with the estranged 27-year-old mother of his 7-month-old baby. The story trended through the final moments of 2015, spilled over into the new year, and left a cocktail of tweets, Instagram posts, press releases, petitions, baby pictures, test results, and a song in its wake.
Besides the dramatics, I consider this set of facts important to understanding the matter.
The baby was borne out of wedlock.
Davido – after undergoing DNA testing – has accepted paternal responsibility, and has been providing maintenance and care for the baby and the mother.
It has been alleged that traces of cannabis were found in the baby after she took ill. That upon testing, suspicion of it being transmitted from the mother was confirmed when Sophie tested positive to having cannabis in her system. A test result was released to buttress this allegation.
That, Davido, aided by his family, swiftly sought what they considered the best medical intervention to nurse his baby back to good health. Without Sophie, they left Nigeria for a hospital in Dubai where the first round of treatment was administered.
Allegedly, a subsequent trip to Dubai to have the baby’s health evaluated without the mother in attendance, was frustrated when law enforcement officers at the Muritala Mohammed International Airport refused to give the requisite clearance for departure.
The immigration officers acted on the prompting of a petition filed by Sophie and members of her family. She alleged that there was a sinister plan by Davido and members of his family to permanently deprive her of access to her daughter.
The influx and frequency of dalliances have precipitated occurrences such as this. This is an issue our society grapples with: when a baby is born, the excitement of indiscretions disappears and the consequences dawn on the parties concerned. Families helplessly resort to self-help, name-calling, media-bashing, and other crude forms of intimidation. A few lead to forced marriages. And fewer amicable settlements are attained. Someone almost always feels cheated and abused when dust settles.
It prompts the following questions: how many Nigerian women have illegally lost custody of their children? How many of these cases are reported? Why is self-help the order of the day? Can the judiciary save the vulnerable? Are there enough laws to address these issues? Can self-help be justified under any circumstances? Can a father abduct his own child?
The intervention of our jurisprudence is found in the Nigerian legal system. Our system embraces common law, Sharia law, and customary law. All of these have postulations on the issues of child custody.
Under common law, either the father or the mother gets the custody of the child depending on the facts of each case. This determination is dependent on many variables, such as the best interest of the child, emotional attachment of a particular parent (mother or father), adequacy of the facilities such as educational, religious or opportunities for proper care, and the character of persons involved. In this regard, legal representatives of contending parents are at liberty to present their respective requests to the court.
Statutory interventions also abound. The Matrimonial Causes Act 1970 is applicable to all child custody cases of a statutory marriage. It doesn’t apply to children borne to customary or Islamic marriages. It however recognizes that in all custody matters, "the interests of the child shall be paramount". See Section 71 of the act.
The child’s best interest is also catered to in the Child Rights Act 2003, Child Rights Law 2007, and the Lagos Domestic Violence Law, 2007. The United Nations Convention on the Right of the Child, 1989, also requires that the interest of the child should be placed at the forefront in custodial decisions. For the enforcement of these laws, the family courts can be approached by any interested party (even third parties who care about the welfare of the infant). However, Nigeria’s child custody laws, to a large extent, remain a product of its statutory marriage laws. There are no specific provisions for custody of children born outside wedlock. Thus, common law is applicable in instances where there is a gap in statutory provisions. In any case, the primary factor that all other concerns are weighed against is the overall welfare of the child in any given scenario.
Who gets custody when both parents contend?
The courts try to make the interest of the child paramount. However, what is in the best interest is subjective and considered on a case by case basis. In Odogwu v. Odogwu, Justice Belgore, JSC (as he then was) said: "The welfare of the child is not in material possession in the house – good clothes, food and air conditioner, television, all gadgets normally associated with the middle class. It is more of psychological developments. While it is good that a child is brought up by complimenting care of two parents living happily together, it is psychologically detrimental to his welfare if material care available to him is denied him". In granting relief to a petitioner, the Court must exercise discretion that best suits the interest of the child.
What the courts will do
The court is expected to wield its discretion judiciously, by granting joint custody or sole custody. When litigants demonstrate a willingness and ability to care for the children jointly a judge will favour a joint custody ruling. This decision grants both parents joint legal and physical custody of the child, and is therefore subject to the partners agreeing some kind of schedule.
In the event that joint custody is objectionable due to geography, age, accommodation, health, means or, in extreme cases, forms of abuse or lawlessness by one or both parents, sole custody will be awarded to one parent. To offset this, a judge may award visitation rights to the absent parent or, if the separation is amicable, will advise the couple to establish their own visitation schedule.
Often, custody of young children is awarded to the mother. But, again, there is no hard and fast rule, and the circumstances of each case determine the best interest of the child/children. Nonetheless, evidence of misconduct and moral depravity could however tip the courts judgment against a party when awarding custody of very young children
Furthermore, while a vote for self-help could infer an endorsement of impunity, I am aware there are instances where individuals are disposed to by-passing the Nigerian courts. They hold the opinion that the grindstone of justice grinds too slowly; incessant delays and adjournments can have devastating effects on lives. Davido might have subscribed to this school of thought, and he might hold the belief that since he was successful with the first trip to Dubai, he could always explore that option.
Another school of thought is this: he could equally have fast-tracked, sought and obtained a favourable order, from the family court in Lagos that would have enabled him give his daughter the best healthcare possible.
The jury is already out on whether the child trafficking allegations against Davido will stick if a chink is found in in his armor. There is also an ongoing debate as to whether Sophie can be trusted to be a good mother, in view of allegations about use of marijuana. Time will tell as events unfold. However, I hold the view that the baby’s health is more important than mud slings and the sensationalism the matter has attracted.
Also, I believe that considering the timeline of events, test results and the urgency attached to the baby’s state of health, an appropriate order of court could have been obtained expediently. Recourse to self-help would have been needless if this was done. It is in the interest of justice that the interest of the baby is elevated over and above all considerations. Besides, a vulnerable baby’s right to life, dignity, family and care subsists and cannot be impeached under relevant Nigerian laws. Therefore, I suggest that where amicable settlement is not attainable, interested parties or contending parents should submit themselves to the courts for the determination of their custodial rights instead of embracing self-help.
Akinyemi Ayinoluwa is a lawyer at HighTower Solicitors and Advocates, Lagos, Nigeria. Follow him on Twitter @akinyemilaw
This article expresses the author’s opinion only. The views and opinions expressed here do not necessarily represent those of Naij.com or its editors.
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