Factors to be considered and used in determining the issue of custody of children in matrimonial proceedings “Now both learned Counsel for the parties are right when they stated that in custody proceedings the interest of the children in question is the paramount consideration in the determination of who among the parents should be granted custody. In that regard, Section 71(1) of Cap 220 has made provisions as follows:- “71.(1)
In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the Court shall regard the interests of those children as the paramount consideration; and subject thereto, the Court may make such order in respect of those matters as it thinks proper.” These provisions plainly had stated that the Court in determining the issue of custody, should regard the interests of the children as the paramount consideration. Interests of the children would include their welfare, education, security and overall well being and development.
Therefore the welfare of the children is the prime consideration in the determination of who should be granted custody. In this regard, this Court in the case of TABANSI v. TABANSI (2009) 12 NWLR (1155) 415 at 432 had stated that: – “Except the conduct of a wife is morally reprehensible, it is better in an estranged marriage for the child of the marriage, more so if that child is a girl and of a tender age, to be left in the care and custody of the wife.” Although there is no rule of law which says that a female child or a child of tender age should remain in the custody of the mother when a marriage is dissolved, however it cannot also be seriously disputed sentiments apart, that children who are female and in their growing or formative years are better cared for and looked after by the mother except the contrary is shown by credible evidence. It is generally presumed that such children would be happier and more at peace because of the closeness and intimacy, which breed affection and familiarity with the mother, who most of the times, was there for them.
So, in custody proceedings unless it is abundantly clear that the mother suffers from moral conduct, infectious diseases, insanity, lack of reasonable means or is cruel to the children, etc., children of tender age, male or female are ordinarily better off in terms of welfare and upbringing, with the mother. Of course, there may be few exceptions that are far apart where the father may be better than some mothers in the upbringing of the children. There is always that rebuttable presumption in favour of the mother in the consideration of the custody of the children of a dissolved or broken down marriage. See ODOGWU v. ODOGWU (supra).”
Per GARBA ,J.C.A (Pp. 24-26 paras. C)
ODUSOTE V. ODUSOTE (2011) LPELR-9056(CA)