CUSTODY OF CHILDREN AND THE CONFLICT OF RIGHTS IN MATRIMONIAL DISPUTES[1]
INTRODUCTION
In the matrimonial phase of life, children are a heritage from the lord, the fruit of the womb is his reward. Children are God’s best gift, they are his generous legacy.[2] The value of a life in all its formative, tender, maturing and fully mature stages is limitless, infinitely high and cannot be compared with any material purchase or acquisition.
The gift of life is best celebrated when we consider the totality of all the animate expressions; from the bundle of joy a baby innately brings to the amazingly distinct identity of an adult as displayed through the process of growth.
When adults get married, their matrimonial journey begins, the cycle of life unveils another dimension for them which is the springboard for their children. Every human being has fundamental and inalienable rights but the elements of conflict are also undeniably part of the configuration of the universe.
We now consider, here, the rights that are at war in matrimonial disputes, the fate of children and how the conflict is resolved.
DEFINITION OF TERMS
Rights, in a concrete legal sense, are powers, privileges, demands or claims possessed by a particular person by virtue of law. There are different classifications of rights which all point to an entitlement to something, whether to concepts like justice and due process, or to ownership of property or some interest in property, real or personal.[3]
I humbly define a right, for the purpose of this work, to be the existing element of a person’s authority which finds expression in the doing of a thing, the refrain from doing a thing and/or in an identified material/immaterial reality.
Conflict on its part refers to the outcome of the inability or unwillingness of two distinct realities to be united, to blend or to agree. It is a situation of sustained friction between distinct facets of life.
A child is a human being who by virtue of age and immaturity still requires the care, guide, protection and provision of an adult. Globally, countries through their laws and with regards to their peculiar realities have set the age of a child. Indeed, other factors have been considered and codified in identifying specific age limits for the purpose of defining who a child is[4], but, for our purpose here, a child is any person below the age of 18 years.[5]
Custody in this context, has been Judicially defined to mean the control and the preservation and care of the child’s person: physically, mentally and morally.[6]The concept of custody truly means; to keep, to have, to control, to protect and to provide for a child.
While disputes have commonly similar traits with conflict, matrimonial disputes for the purpose of this work, refers to misunderstandings resulting in the impracticability of having a couple stay together and/or agree on the patterns with which to raise a family in peace, love and unity.
THE NATURE OF MATRIMONIAL DISPUTES
Marriage is usually the institution that has two people joined with the plan or desire for a unified purpose, a united future and a happy life.[7] Love is almost always the cardinal condition or key certainty that fires up the level of attraction which results in passion, planning and commitment towards actualizing the desired reality. Most people are naturally attracted to their opposite but sadly spend the rest of their lives trying to change them. Where the emotional truth is passionately expressed with words, there are common promises like: “I will always love you” “You are my dream come true”, “I will love you for who you are”, “I will die for you”, “I can’t live, if living is without you”[8] “I will always be there for you”.
So many expressions and promises of desire, love, honesty, faithfulness and assurance are poured out and shared in the build-up to marriage. In fact, most formal marriage ceremonies typically involve some specific and binding proclamations but afterwards; life realities hit, people change, people grow apart, people give up, people want to try new things and the human frailty of selfishness may just get the best of a person.
A Leadership executive has said: “Love involves a measure of dying. If you are not ready to let go of some parts of you, let go of some rights and prerogatives, then you are not ready to love”[9]
The world is faster now. The level of self-centered dispositions, self-preservation ideologies and individualism has increased and is fast consuming the authentic foundations and benefits of true love, family and matrimonial coherence.
I will not deny knowledge of the fact that matrimonial disputes are naturally inescapable because of our truly distinct human temperaments. These personality differences, in the words of a marriage and family life consultant, “often go undiscovered and undiscussed before marriage. During the dating phase of the relationship, decisions are often made simply because he and she wants to please each other. After marriage when life gets serious and real, the desire to please each other is not as natural. When differences emerge, the logical thinker will seek to press the intuitive thinker into having logical reasons for their position. This is expecting and demanding the impossible. The intuitive person will never process life with the logic of the professor. If you try to force each other into your own personality mold, you may spend a lifetime in conflict.”[10]
Racism, sexism, antagonism, chauvinism etc., and all that aggressive and unreasonable belief that ‘my own’ thing or perspective is superior to all others are indeed real life diseases that can get the best of, the best of people when allowed to blossom.
Life is a journey of challenges and every marriage has challenges. These challenges come as different strokes are for different folks. Financial problems, for example, often snowball into chaotic matrimonial disputes. This is 2020 and yes we are in the “it’s-all-about-the-money” age as money makes almost everything better. I say ‘almost’ because the extremely wealthy and the average rich person can still have marital crises rooted in a different challenge.
Religion without faith is another major cause of matrimonial disputes as people often lose faith in the love they promised to cherish forever. Certainly, some even lose faith in themselves, ignore the place of the supernatural and lose faith in God, overlooking the fact that there is only so much a human can endure by natural or trained capabilities. The smartest of persons can make the silliest mistakes. No one will succeed by strength alone.[11]
From the play documented in ‘The gods are not to blame’ by Ola Rotimi[12] to the dilemma depicted in the film ‘Acrimony’ by Tyler Perry[13] and, of course, the daily realities I get faced with adjudicating as a customary court judge, it is understandable that most matrimonial disputes are clearly life challenges playing out as tests/examinations for students of the most composite, emotional and realistic human institution.
To everyone making plans, building relationships, getting married or who’s been married for a while, it is my humble submission that the perfect approach to matrimonial disputes is this; like a diligent and determined student, do everything you can to succeed, understand that failure is not desirable but when you do fail, it is not the end of the world and it is sure not the end of your life.
CONFLICTING RIGHTS
For every marriage structure, there are different rights as specified by the applicable laws. For marriages that are statutory, matrimonial disputes are considered by evaluating fundamental rights, conjugal rights and statutory marriage obligations. Couples should not forget that the very essence of their marriage is the agreement to merge each other’s fundamental rights, core needs and plans to the extent provided by the nature of their union. Conflicts often become inevitable when one spouse elevates their individuality, independence and personal space over and above the conjugal rights and statutory marriage obligations. You can’t eat your cake and have it. You cannot be married and independent. Freedom of expression, freedom of movement, freedom of thought, conscience and religion are examples of rights that must be brought under the matrimonial rights and marriage obligations. Not that these rights will be extinguished but if a couple is to truly be responsible for, and to each other, in true unity, they must be prepared to compromise, share and surrender certain rights on the platter of matrimonial harmony. Marriage is a consistent sacrifice of choice.
Also for marriages under native laws and customary principles, the parameters are almost exactly the same even with the different cultural realities and traditional matrimonial obligations. The unwritten customary laws regulating marriages differ in specific rules but the general spirit and intention at the foundation of these laws propagate the desire for the overall interest of the family/community to take prominence over that of one individual. Most native laws and cultural practices reflect the connect/bond between the ancestors, the living tribe and the future generation. This is why the rights of the family, the tribe and the community is often elevated to a pedestal higher than those of the individual. An Ethiopian proverb perfectly captures this concept in a popular proverb: “if you pick up one end of the stick, you also pick up the other”.
Customary laws are a mirror of accepted usage and they are dynamic because humans improve and grow. Interpretation and application of customary laws are not free from conflicts either but, the justice system and structure of conflict resolution in most traditions is the protection of the good of ‘all’ over the good of ‘one’ especially where rights conflict. Freedom of movement for example, particularly to cultivate and make profitable use of available land is restricted as there are prohibitions in different dimensions, one of which is when it comes to designated traditional territories known or believed to be sacred.
THE POSITION OF CHILDREN AND THEIR RIGHTS
Beginning with the customary law perspective, children are known to be integral parts of every tribe, community or an ethnic segment and parents are believed to be trustees. The responsibility of ensuring the safety and welfare of children is not just an obligation for parents but indeed the entire community. A popular Igbo adage states; “nwatakiri bu nwa nke onye obula”. This being interpreted means ‘A child is a child of everyone’.
At the core of every native law and custom is the undeniable need for preservation and perpetuity. This therefore clears out the dust that settles on the purpose of a cultural practice. Indeed belief systems that have failed to meet modern standards, statutes, public policy or global best practices can be statutorily struck down if they fail the known tests.[14] It is important, however, to understand the very nature of humanity as expressed in customs. Children are the future. They are the extensions of the present and the past. The rights of children are always made to take a pride of place as every other right to be considered has to be in favour of ‘communal preservation’-a concept that flourishes through the survival of children who are the future. In matrimonial disputes therefore, most customary laws that have stood the test of time and acceptance have been consistent in putting the interest of children first.
Statutorily in Nigeria, beyond the Fundamental Rights guaranteed every citizen as provided for in Chapter IV of the Constitution[15] the rights and responsibilities of a child are contained in Part II of the Child’s Rights Act[16] and they generally are regarded with utmost priority.
Islam teaches that once a child is conceived, it has the right to life. If a man and a woman have both dedicated their lives to worshipping and pleasing their creator, then the rights of any children they may have are automatically guaranteed. By marrying rather than having an illicit relationship, the couple already began to secure the rights of their future children. A child has the right to know and understand his or her lineage among other rights.[17]
CLASSIFICATIONS OF CUSTODY
Joint custody accommodates a situation of shared or rationed arrangements between parents particularly after a divorce or where they are separated. Custody of children has Physical and Legal as the two broad classifications. Physical custody refers to the child’s daily life, such as living arrangements, medical care and other necessities. Legal custody refers to making major decisions on the child’s behalf. Joint custody would usually involve clearly spelt out terms regarding the physical and legal aspects, either through a judicial declaration or by the agreement of parents through a mutually workable alternative dispute resolution mechanism.
Sole custody by a different stoke is an arrangement by which one parent has full control and sole decision making responsibility-to the exclusion of the other parent on matters such as health, education, religion and living arrangements. Decision making does not mean the parent has sole financial responsibility. It only means in taking necessary decisions to the best interest of the child. Sole custody is without prejudice to the financial capability of the party being awarded sole custody. The “non-custodial parent” however, has visitation rights and must make financial contributions towards the maintenance, upkeep, health and education of the child.[18]
THE SHARI’A PERSPECTIVE
Islam also recognizes family as the basic unit of a society. Disruption of this basic unit has many consequences not just to the members of that family but also to the society as a whole. Matrimonial conflicts being inevitable may lead to divorce but the problems of the adults involved should not in any way affect the children.
Custody (Hadhana) in Shari’a law, broadly means” raising or bringing up of a child”, while legal guardianship (Kafaalah/Wilaya) could be granted to someone who is not necessarily be the child’s biological parent. “The Islamic perspective of custody encapsulates a parent’s care of a child, while recognizing the form of guardianship which women are more suitable to assume because they are more experienced in the area of looking after children, and they are generally more caring and compassionate.”[19]
Islam also mandates that children be treated and looked after in a proper manner. Among the many rights that children have, Shari’a positions two major rights on the highest pedestal. The first is the right of children to receive proper care and love while the second is the right to proper upbringing. The age of puberty has been classified to be time frame for custody[20]
The Maliki and Hannafi Schools of thought are of the consensus that the paramount consideration would always be the best welfare/interest of the child. Islamic Jurisprudence considers the child’s mother to be the first custodian for an infant or very young child. This is keeping in mind the best welfare of the child. If the mother is not fit for some reasons such as physical disability or mental illness, then the custody will be granted in the following order: (though there is no hard and parcel rule) the welfare of the child is the prime objective. “In default of the mother, the right passes to other relatives, priority being given to females and to the maternal side asserted by IbnBarraj as follows:
1. The mother’s mother how high so ever (the mother’s father’s mother excluded).
2. The maternal aunt and grand-aunt.
3. The father’s mother how high so ever.
4. The father.
5. The paternal aunts and grand-aunts.
6. The child’s sisters and their daughters, priority being given to the full sisters, followed by uterine sisters and then consanguine sisters.
7. The father’s executor or the executor’s executor.
8. Anyone appointed by the Qadi.
9. The child brothers, uncles and paternal grandfather.
The reasons for this is that, in the early years, the mother and the other female relatives are more suitable for raising the young child (regardless of sex) with love,mercy, attention, and motherly care.”[21]
THE PARAMOUNT CONSIDERATION PRINCIPLE
Statutorily, the law is that in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration.[22]
This unequivocally means that in matrimonial disputes, every other right that is not, if exercised, in the best interest of children would be set aside or made to give way. It is not that the rights of parents are extinguished, but the hierarchical focus at every point is on the welfare of the children first.
It is important for adults to understand that before marriage, they ought to settle it within themselves, if they plan to have children, that the paramount consideration principle is a perfect guide with which to navigate the ocean of matrimony, to overcome self-will and subdue self-centered dispositions. It is better to be equipped with this principle before marriage so as to be precise about choices before going into, and while in the matrimonial institution.
Conflicts that emanate from the collision of fundamental, parental/matrimonial and other rights clearly spelt out in applicable statutes are easily resolved in court through evaluation of facts and the interpretation of laws through adopting the relevant rules of statutory interpretation. Customary laws, on their part need to be established by evidence, and even for specific customary law principles that have been judicially noticed, parties still have to prove the applicability or otherwise of same, either as it affects them/their tribe or how it does, or does not apply to their circumstance/case.
Conflicting rights have time and again been established under customary law in matrimonial disputes but the paramount consideration principle has always been the perfect parameter for resolution.
Under the Igbo native law and custom, for example, children are largely said to belong to their father. This is directly connected to the belief that in the preservation of ancestral heritage, children are an extension of the family, they carry-on the identity of their lineage through a specific surname. They also often learn to speak a particular language and imbibe the culture of their people. When it comes to custody of children in matrimonial disputes however, this patriarchal right would not be enforced by a customary court, if, considering the entire circumstance of the specific case, that right conflicts with the paramount consideration principle.
The Supreme Court has had reasons to hold that “In general, under most systems of customary law in Nigeria, the father of a legitimate child or legitimated child has absolute right to custody of the child. However, customary law recognizes that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child”[23]
With humility, I delivered judgment in the case of Blessing Jeremiah V. Jeremiah Yusuf[24] where the native law and custom of the Gbagyi tribe was considered and applied. The marriage had broken down irretrievably and custody of two children aged 10 & 8 was to be determined. There were other rights regarding: paternal privileges which the respondent has as the father of the children, bride-price refund, waiver of same, the intervention of the traditional ruler and such. However, in applying the paramount consideration principle, the court evaluated the entirety of the case with particular regard to the evidence of the petitioner who, though is the mother of the children, admitted that their welfare and education would be better provided for if custody is granted to the father of the children. Custody was so granted to the Respondent with unhindered access/visitation rights granted to the Petitioner.
There is the Customary law principle of ‘Alekwu’ under Idoma native law and custom which is to the effect that where a husband has raised the allegation of infidelity against his wife in a marriage, custody of children cannot be awarded to her until she performs the traditional ritual cleansing. The conflict of rights could either be pictured from the perspective of the communal right to preserve a tradition, the right of a family to keep its good name or the individual right to life. The Federal Capital Territory Customary Court of Appeal in the case of Ejeh v. Ejeh[25] applied the paramount consideration principle and found that the application of the ‘Alekwu’ custom to the facts of that case would be inconsistent with Section 1 of the Child’s Rights Act 2003 and Section 18(2) of the Federal Capital Territory Customary Court Act 2007. The court in that case positioned the welfare of the children over and above everything else and decided accordingly.
It is undeniable that the constitution[26] guarantees fundamental rights and particularly the freedom of an individual or a community to hold certain beliefs or subscribe to the native laws applicable to them. However, when custody of children is in question, what matters most is the welfare of the children. This is because custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences. The welfare of children of a marriage that has broken down irretrievably is not only of paramount consideration but a condition precedent for the award of custody[27]
In arriving at a proper evaluation of the reality of every child, all the facts available are put into consideration. The education, the love, the comfort, the moral and spiritual implications including the medical condition(s) of a child would all be specifically and holistically considered in order get a just determination of the question of custody. It is a fallacy to assume that money and material provisions are all that children need to get their welfare sorted. Even in a particularly materialistic world, love and care, time and presence, commitment discipline are among other factors that must be considered to arrive at what is best for a child.
CONCLUSION
Finding a moral compass is as important as keeping up with responsibilities. Most people are theoretical moralists. The truth is, when it comes to practical human experiences, the mind is susceptible to getting out of control, resulting in actions that are far from acceptable. This is why the need to consistently improve on personality development will always remain at the front burner for anyone who desires a better life.
From Statutory provisions to Customary laws and the Islamic principles, the paramount consideration principle cuts across to ensure the priority of the welfare of children. It is impossible to deny the fact that many (not all) expressions of societal decadence can be traced to disoriented families or the aftermath of matrimonial conflicts. The family ought to be a perfect foundation for learning. Every profession or skill requires some level of training in order to activate the desired outcome. There are standards set and developed by lawyers, doctors, make-up artists, and every other career path or field of interest. A damaged child may be professionally successful as an adult, just as a cultured adult may lack other basic skills. However, if the content of a person’s character, not the color of their skin, their ethnic fraction, their dialect, their sex, religion etc., is the perfect standard, then it is important for families to pay close attention to the character development of every child. Custody of children is a responsibility that goes to the root of nation building, mapping out a better future and fulfilment of purpose.
[1] Hon. Ehusani Abel Simpa LL.B(Hons) BL., Judge, Federal Capital Territory Customary Court.
[2] Holy Bible: Psalm 127:3 (The Message Translation)
[3] < https://legal-dictionary.thefreedictionary.com/right > Accessed via Google search on 20/6/2020 at 8:02 PM
[4] In Nigeria, the age for criminal responsibility ranges from 7 years to 10 years to 12 years and 18 years depending on the offence, the territorial jurisdiction and the applicable law. See Section 30 of the Criminal Code Act, Section 50 of the Penal Code (Northern States) Federal Provisions Act (No. 25 of 1960) and Section 494 (2) of the Administration of Criminal Justice Act 2015.
In England and Wales, children as young as 10 years of age can be convicted of a crime. In Germany, China and the Democratic Republic of Congo the age of criminal responsibility is set at 14 years, while it is 15 in Sweden and 16 in Portugal. < https://www.unicef-irc.org/portfolios/documents/432_portugal.htm > Accessed via Google search on 21/6/2020 at 8:016 AM
[5] See Section 277 of the Child’s Rights Act, 2003
[6] See the case of Nwafor v. Nwafor (Unreported)FCTCCA 10/07/2019 Appeal No. FCT/CCA/CVA/34/2018 at Page 7
[7] Polygamy legitimately recognizes more than two people in a marriage. There are also other dimensions of matrimonial arrangements but for the purpose of this work, we would stick with marriage as defined here.
[8] This one is a classic line taken from the song 'without you' originally written by Peter Ham and Tom Evans of the Badfinger band in 1970. The song was made popular by Harry Nilsson in 1972 and Mariah Carey in 1994 and has been recorded by several others of different generations.
[9] Rev. Fr. George Ehusani <Wednesday Quote for July 17, 2020 available at the Lux Terra Leadership Foundation social media twitter handle @LuxTerraNG > accessed 17/06/2020 at 9:20 PM
[10] Gary D. Chapman ‘Things I wish I’d Known Before We got Married’(Joint Heirs Publications, Benin City, 2010) P. 167
[11] 1 Samuel Chapter 2 verse 9 Holy Bible NLT See also “…time and chance happen to all…” Ecclesiastes Chapter 9 Verse 11 (NKJV). In the Noble Qur’an it is also written “…when you have decided, then place your trust in Allah…” Surat Ale’Imran (3) verse 159
[12] Ola Rotimi, The Gods are not to Blame (Ibadan: Spectrum Books Limited, 1981)
[13] The 2018 American thriller film ‘Acrimony’ produced, written and directed by Tyler Perry. Visit the official movie site: http://www.lionsgate.com/movies/acrimony
[14] The Repugnancy test is that which ensures that customary laws that are repugnant to natural justice equity and good conscience. The incompatibility test is that which ensures that customary laws are not incompatible with written laws for the time being in force.
[15] Constitution of the Federal Republic of Nigeria 1999 (Amended)
[16] Child’s Rights Act 2003
[17] Aisha Stacey ‘What Islam says about children: God guarantees the Rights of Children’ Published 19/4/2010 at islamreligion.com available at https://www.islamreligion.com/articles/3584/what-islam-says-about-children-part-1/ > Accessed 2/7/2020 at 11:24 AM
[18] See generally the case of OCHIGBO V. OCHIGBO (Unreported) FCT CCA 17/10/2016 APPEAL NO. FCT/CCA/CVA/20/2014 Pp. 23-28 Additional useful materials are available at https://www.liveabout.com/types-of-child-custody-explained-1103068 > Accessed via google search 2/7/2020 at 10:04AM
[19] Hon. Justice M.L. Omar ‘Custody and Guardianship of Children: Sharia Perspective’ being a paper delivered at The Refresher Course For Judges And Kadis Organized By The National Judicial Institute, Abuja On 11th – 15th March, 2019
[20] Wilayat Al-Mar’ahFil-Fiqh Al-Islami page 692
[21] ‘Custody and Guardianship of Children: The Shari’a Perspective’ Op Cit.
[22] See Section 1 of the Child’s Rights Act 2003; Section 18(2) of the Federal Capital Territory Customary Court Act 2007 has a similar provision.
[23] This was the decision in the case of Okwueze V. Okwueze (1989) 1 NWLR (PT. 109) 321 P. 12, PARAS. A-C/(1989)LPELR –SC 202/1985
[24] (Unreported) 25/09/2019 FCT Customary Court, Pyakasa. Suit No. FCT/CC/PYS/CV/18/2019
[25] (Unreported) 28/6/2017 FCTCCA Appeal No. FCT/CCA/22/2016. Pg. 6
[26] See generally Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (Amended)
[27] Olowoofoyeku V. Olowoofoyeku [2011] 1 NWLR [PT.1227] P.203 PARAS A-C
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