Who gets the child?

By OLUSOJI DAOMI

Listen, when a marriage breaks and the house scatters, the first question that jumps out is always the same: “Who will keep the child?” And here is where many of us get it wrong.

People say, “The parent with the biggest pocket will carry the child.” That is not true. A child is not a trophy you hand to the highest bidder. The law does not ask, “Who has the biggest car?” The law asks, “Who will hold this child’s hand and not let go, even on the bad days?”

What does the law actually say?

Black’s Law Dictionary puts it plainly: Child custody means the care, control, and maintenance of a child given by a court after it has considered the child’s best interest. Notice that word – after. The court looks at the child first, not the father’s bank balance.

Our own Child’s Rights Act 2003, Section 1 says it without hiding: “In every action concerning a child, the best interest of the child shall be the primary consideration.” Primary means “first”. Not later. Not when it is convenient. The 1999 Constitution, Section 17(3)(f), also says the state must protect children from neglect and harm. So whether we are talking about the Matrimonial Causes Act or the customs in your village, the king of all rules is the child’s welfare.

The Supreme Court has spoken, and it did not stammer.

In Odogwu v. Odogwu 1992, the Supreme Court said something very clear: “We do not give custody to punish anybody.” The court is not a place for revenge. You cannot say, “Give me the child because my wife embarrassed me” or “because my husband cheated.” The court is like a hospital. It asks only one question: “Where will this child heal and grow best?” The Court of Appeal said the same in FGN v. Uchendu 2022: the child’s welfare is the polar star. Just like sailors use the North Star to find their way at sea, judges use the child’s best interest to find their way in a custody fight.

So what happens in real life?

If you are a teacher earning 80,000 naira, do not be afraid. If you are a trader making millions, do not celebrate yet. The judge will ask: Who wakes the child up for school? Who knows that the child has malaria and cannot buy medications? Who helps with homework? Who teaches the child respect and good manners? Is your house peaceful, or does the police visit every weekend? If the child is around 12 years old, the judge may even call the child aside and ask quietly, “Who would you like to stay with?” The judge will listen, though the child’s word is not the final law.

Money does not win custody. Care wins custody.

Let me tell you what happened in Nnewi. A businessman there had shops everywhere. Money was not his problem. His wife was a primary school teacher. When they separated, the man came to court with senior lawyers and big files. But evidence showed that it was the mother who cooked for the children every morning, mended their torn uniforms, attended PTA meetings, and knew the name of their best friends. The father travelled to China often and the children saw him like a visiting uncle. The court gave custody to the mother. The judge said, “Emotional stability is stronger than financial superiority.” The father still pays school fees, but the children live where love is present every day, not where money appears once in a while.

But there are exceptions, because law uses common sense.

A baby that is still breastfeeding will usually stay with the mother. That is called the tender years principle. But if the mother is violent, addicted to drugs, or abandons the child, the court will take the child away immediately and give the child to the father or even a grandmother. If you abuse or neglect a child, forget it. Even if you are the richest man in Africa, the court will not give you that child.

If you want custody, this is what you must prove.

Only three things matter. First, show that giving you the child will help the child, not your pride. Second, show that your home is safe and stable, there is food, there is peace, and the child is not exposed to danger. Third, show that you are involved in the child’s education, health, and moral life, and that you do not use the child to insult the other parent. Bring your payslip, the child’s report card, hospital cards, and neighbours who can tell the truth about you. And in court, behave yourself. If you lie or shout, the judge will believe that is how you behave at home.

Here is the wisdom of elders.

A child is like a tender plant. You do not give it to the person with the biggest bucket of water if that person will only water it once in three months. You give it to the one who will water it every morning, pull out the weeds, and cover it when the sun is too hot.

As our people say, the child who grows up will remember who took care of him. Make sure your name is on that list.

So if your marriage has ended, do not use the child as a weapon. Arrange for the other parent to see the child. Keep records of everything you do for the child. If the problem is too big, go to Legal Aid, FIDA, the Nigerian Bar Association, or any lawyer who understands family law.

The law has finished talking. The child’s best interest is the “supreme law” in Nigeria. Let us respect it, so that our children will bless us tomorrow, not curse us.

Have you heard me well?

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