A common issue that usually arise in a matrimonial causes action touching on dissolution of marriage is the issue relating to the custody of the child (or children) of the marriage. Both parents would naturally desire to be given the opportunity to live with the child. The love and joy children bring can hardly be quantified. In fact, some couples who are in troubled marriages sometimes find a way to remain together for the sake of the children.

When confronted with the issue of custody, the law focuses on a dispassionate principle which does not totally reckon with the emotional attachments of the fighting couple to the child. Thus, the law is that in custody cases, the primary consideration is the interest of the child. By Section 71(1) of the Matrimonial Causes Act, a court can grant custody of a child to even a person who is not a party to the marriage because the interest of the child is the paramount concern of the court in a dispute over custody of a child. It is enough to mention that  mothers are often more favoured to be granted custody of the child by the courts. See the cases of Odusote v. Odusote [2012] 3 NWLR (Pt. 1288) 478. In Tabansi v. Tabansi [2009] 12 NWLR (Pt. 1155) 415.

What happens where a parent whom the court granted custody, leaves the child with the parent’s parents (that is, the child’s grandparents) and travels outside the country? What options does the other parent have? The case of Okobi v. Okobi [2020] 1 NWLR (Pt. 1705) 301 presents us with some answers.

Okobi v. Okobi

In Okobi v. Okobi, the marriage of the couple was dissolved. The Court made an order, granting custody of the Child – a boy – of the marriage to the Mother (until the Child attains 12 years), and directing the Father to provide funds for the Child’s upkeep. The Father was also allowed unfettered access to the Child.

Subsequently, the Mother travelled abroad for further studies, leaving the Child with her parents (the Child’s Grandparents). The Father was livid. On one of his visits, he took the Child away. He thereafter applied to the Court for an order varying the custody Order earlier made by granting him custody of the Child. The Court considered his application and varied the Order by granting joint custody of the Child to the Father and Mother on terms to be worked out by both of them. The Court had determined a preliminary objection raised by the Mother challenging the power of the Court to vary its earlier Order, on the ground that the Court had become functus officio – meaning that the Court lacked the power to make any subsequent order on the issue as only an appellate court can do so on appeal. The Court overruled this objection.

The Mother (as Appellant) appealed to the Court of Appeal. The Court of Appeal confirmed that the trial Court had powers to vary the custody Order made based on the provisions of Section 64(1)(b) and (6) of the Child’s Rights Law of Lagos State.

However, the Court of Appeal struck down the Order made by the trial Court, granting joint custody to the Child’s parents. The Court was of the view that the Order was unhelpful as it returned the couple to square one, holding that if the couple could work out the issue of custody, they would not have approached the Court in the first place.

The Court of Appeal chastised the Father for taking the law into his hands by taking the boy away contrary to an existing Order of Court granting custody to the Mother. Tobi, JCA held that the Father’s application ought not to have been entertained and granted in the first place for disrespecting the Court.

Constructive Custody

On the vexed issue of the Mother leaving the Child to travel abroad, it was contended by the Father that the conduct of the Mother amounts to custody by proxy and that it was a violation of the Order of the Court granting her custody. The Father argued that the Mother was not giving the Child proper motherly care by herself. His position was that since he was in Nigeria, he should be granted custody.

Tobi, JCA took time to consider the situation. The His Lordship factored in the fact that the Father did not contend that the Boy was not being properly taken care of by the Boy’s Grandparents (his Mother’s parents). The Father did not deny that the Mother was in constant communication with the Child. The Father admitted that his own parents (the Child’s paternal grandparents) and a nanny took care of the Child for him, although he goes home to play with him. The self-help employed by the Father also weighed heavily in the mind of the Court.

Having considered all of the above, Tobi, JCA held (without relying on any particular authority on this point):

In the absence of any specific order that the Child must be in the physical custody of the Mother (the Appellant), a child in the custody of the grandparents of the Appellant is constructively in the custody of the Appellant. I do not agree that such situation amounts to custody by proxy and that it is a violation of the Order of the Court.

His Lordship was of the view that the argument that the Mother travelled to the United States was “an ego trip” which was not in the interest of the Child. More so, having considered that the Child was in constant communication with the Mother, Tobi, JCA reasoned:

While the physical presence means a lot, the truth is that the true test of love is not necessarily in physical presence.

The Court of Appeal ordered the Father to return the Child to the Mother’s parents (the Child’s Grandparents) to remain in the Mother’s constructive custody until the Child is 12. The Mother was directed not to take the Child outside Nigeria without the written consent of the Father. The Court further directed that upon the Child attaining 12 years, the issue of his custody should be referred to arbitration for settlement.

Conclusion

We must note that the self-help employed by the Father was a problem in this case. The proper step he ought to have taken in such situation was to file an application, stating cogent reasons the custody Order should be varied to grant him custody, perhaps pending when the Mother returns from abroad. However, as found by the Court of Appeal, the Father was unable to prove why granting him custody was in the interest of the Child. His case rightly failed.