In a prior edition of this column, Child Custody was discussed, although not exhaustively. Consequently, it is imperative to address other areas of Child Custody that were not discussed previously. It is a common misconception that Child Custody battles only pertain to warring couples who are enmeshed in divorce proceedings. This assumption is correct to the extent that in any divorce proceedings, the welfare arrangement of the children of such marriage is crucial to the dissolution of the marriage and must be determined.
However, custody battles are not exclusive to divorce proceedings but also arise in other instances between unmarried parents and even third parties who are non-parent. Third-party custody is an arrangement where the custodial rights of a child is granted to a non-parent of a child such as a grandparent or a family member rather than the natural parents of the child where such a decision will enhance the best interest of the child. This arrangement is often considered in situations where both parents are dead or are considered unfit or unavailable to take primary care of their child. This could be due to incarceration, mental or physical incapacitation of the parents.
It is imperative to note that the court does not inherently intervene in questions of custody. Thus, parents are given the latitude to determine the arrangements which must be in the best interests of the child. The only obligation is that the court must scrutinise and ratify such arrangements before it becomes valid. The court will only intervene when both parents fail to reach a compromise by asserting competing rights over the care and guardianship of their children. This legal tussle between parents is usually an emotionally draining and difficult aspect of most divorce proceedings particularly for the children. In order to be considered the better parent by the court, parents ignorantly drag their children into the battle which puts the children in precarious situations. In some cases, parents utilise custody arrangements as a weapon to punish the other parent and not necessarily in the interest of the child.
It is imperative for divorcing couples to recognize the fact that divorce is often a traumatic experience for children whose world is suddenly shattered. While it is settled that parties have the right to dissolve a marriage for whatever reason they consider justifiable, a high conflict custody battle further exacerbates the trauma of the children. It places them in complicated positions of having to choose between either parent which can be inimical to their psychological development and emotional stability. Thus, it is advised that divorcing couples must endeavour to make the experience less excruciating for the children by considering a high level of conflict management in custodial arrangements. Personal and egos should be suspended by making arrangements that would enhance the best interest of their child. Parents seeking custody of their child must be convinced that they are indeed capable of fostering the best interest of the child.
At this juncture, it is imperative to state that the maternal presumption that the rights of mothers are superior to the rights of fathers in custody arrangements is false. Rather, parents are placed on an equal footing before the law with equal custodial rights to the children. It is left to both parents to present evidence demonstrating that they are the better parent to serve the interest of the child. Irrespective of this principle of the law, we are not oblivious of the fact that the percentage of mothers winning custodial rights far outweighs the number of fathers. This is so for a number of reasons that will be considered subsequently.
The universal standard and paramount consideration for the court in every custody dispute is the welfare and the best interest of the child. The interest or wishes of either of the parents is not a determining factor when considering QDAMS< b v n .k the best interest of a child. The court is also not concerned with punishing either of the parties for any misconduct. This principle assists the court in determining which parent will serve the interest of the child better by establishing a sane, stable and secure environment for the child. Further, the courts are gradually dispensing with the “tender years” presumption where it is thought that the interest of an infant or a young child is better served with the mother.
A lot of composite factors are considered by the court in order to determine the parent who will adequately enhance the interest of the child. This is done by evaluating the child’s mental, physical, emotional, religious and social needs of the child. The conduct of the parties may also be a factor to be considered. These factors are often decided on a case-by-case basis and are not exhaustive or mutually exclusive. In most cases, the first question which the courts often consider to be fundamental is to determine the primary caregiver of the child. This consideration is particularly important due to the fact that the existence and sustained emotional bond between a child and a parent is fundamental to the developmental stages of a child’s psychological stability. Thus, the primary caregiver of the child is often decided by determining the parent who assumed the most key responsibilities of taking care of the child during the course of the marriage. The tasks considered are more of a physical task than economic tasks. Such tasks include the parent who was more involved in the educational activities, bathing, grooming, meal planning and preparation, healthcare arrangements, fostering of extracurricular activities, helping with homework and involvement in leisure activities.
In a circumstance the determination of the primary caregiver is difficult owing to the fact that both parents share the tasks equally and competently, the court may consider other factors such as the wishes of the child if the child is old enough to make an informed decision, the need for a continuation of a stable home and school environment, religious or cultural consideration, special needs of the child and the ability of each parent to respond to such needs, mental and physical health of the parents, the age and sex of the child, the needs of other siblings and a host of other considerations.
A critical evaluation of the determination of the question of the primary caregiver suggests that most mothers will pass this criterion easily than most fathers. This is evident as most mothers are the natural nurturers of a child. This is the reason why the percentage of mothers awarded physical custodial rights of their children far outweighs the percentage of the fathers. It is not as a result of any bias towards the men folk or that women are better parent than fathers. The reason is more of a psychological fact than any other extraneous consideration. Most fathers would rather leave the tasks of the daily care of their children in totality to their mothers choosing to be more of an economic provider for the children. Some fathers do not know the names of their children’s teachers let alone attend school activities. Some fathers do not know extracurricular interests of their children or even their doctors. These consequential actions give mothers advantages in a custody dispute.
In custody disputes, many people do not understand that custodial rights involve two elements which are the legal and physical custody. A lot of parents are only familiar with physical custody without an understanding of legal custody. Physical custody means that the child physically lives with the custodial parent while the other parent has visitation rights. Conversely, legal custody means the rights exercised by a parent to decide long-term and key decisions on the child’s welfare. Such decisions involve the child’s education, tutoring, extracurricular activities, medical care and religious upbringing. These different elements of custody can also be exercised jointly or separately. While it is common that a parent who is awarded the custodial rights may get both the legal and physical custody, in some cases, the custodial elements may be split between both parents if the interest of the child demands such an approach. One parent may exercise physical custody of the child while the other parents may have visitation rights and the sole rights to decision making.
However, most courts have jettisoned the grant of sole custody to either of the parents and now moving towards the progressive approach of awarding joint custody to both parents. This is premised on the fact that children need the presence of both parents in every developmental stage of their lives and denying them these rights will be a disservice to the children. The court will ensure that the parents execute a workable parenting plan that will enable the child to have maximum exposure to both parents and that no parent is alienated.
While it is agreed that the approach of the courts are progressive in recent times, it is preferred that divorcing parents consider the amicable resolution of the parenting plan between themselves without inviting the intervention of the court. This approach is preferred primarily because it has a less devastating effect on the children. Another reason is that approach of the court may throw up unfavourable surprises. This amicable resolution may be achieved through the help of the lawyers of both parties or with the appointment of a mediator. Focusing on the best interests of the child means that all custody discussions and decisions are made with the ultimate goal of fostering and encouraging the child’s happiness, security, mental and emotional development into young adulthood by maintaining a close and loving relationship with both parents.
Olamide Onifade is a practicing lawyer and the founder of Olamide Onifade & Associates.
2nd Floor, 149, Ogudu Road, Ogudu, Lagos
Tel: 09093335636
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Email:barristerolamideonifade@gmail.com
