CUSTODY AND GUARDIANSHIP DEFINED.

Since time immemorial in Nigeria people have put custody and guardianship, and always interpreted to mean the same thing.  This is simply not right as the two are very different terms. A person can be in the custody of a minor and yet not be a guardian to the minor or be a guardian to the minor and yet not in custody of the child. Oftentimes, being in the custody of a child puts one in a guardianship position for the period of time that the child is in the custody of that person. Now the explanation above is to show that custody and guardianship are used interchangeably and custody cannot be seperated from guardianship but guardianship can be seperated from custody. In Nigeria, for instance under our extant laws the custody of a minor often lies with the mother of the child who is considered the most appropriate person to look after the child but a drift into paternity laws as can be seen often times in practice shows that the general assumption is that the father of the minor is often the guardian of such child and is responsible for the general welfare of the minor in terms of financial and moral obligations to the minor. Now the explanation above shows that the law places an obligatory custody rights on the mother who is best suited to care for the child and then places an obligatory guardianship rights on the father who is expected to provide for the child

According to Nnaemeka Agu J.C.A (as he then was) at the court of appeal in the case of Williams vs. Williams¹ he held that,

"The custody of a child essentially concerns not only the control of the child but carries with the necessary implications of the preservation and care of the child's person, physically, mentally and morally".

Thus with the interpretation above it shows the thin line between the two concepts. There are however other concepts which are closely related to custody of children which will be discussed in my other articles for instance adoption, and foster parenting. there are also several laws that provides for the custody of children

S.71 (1)of the Matrimonial causes act provides that in proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, the court shall regard the interest of those children as Paramount consideration and subject thereto, the court may make such order in respect of the matters as it thinks proper.

(3) that the court may grant custody to a person other than a parent of the child if the court thinks that it will be proper and in the interest of the child to do so. These orders the court is usually careful to make concerning the placement of children of the marriage with persons other than their parents.

Sec 27² of the child's right act talks about the fact that a person who has no legal capacity to be in the custody of a child cannot be in the custody of that child the section provides that "no person shall remove or take a child out of the custody or protection of his father or mother, guardian or such other person's having lawful care or charge of the child against the will of the father, mother, guardian or other person".

Any person who contravenes this law and takes a child out of lawful custody and out of Nigeria  temporarily will face a prison term of 15 years

Where the child is taken out of lawful custody and out of Nigeria without intention of returning such a person is liable for a 20year imprisonment term.

Where the child is taken from the state of residence to another state in Nigeria unlawfully such a person is liable to a prison term of 10years.

Sec 69 CRA, states that the court has power to make orders in respect to the custody or the right of access to a child in the following terms. The court may on the application of the father or mother of the child make such order as it deems fit with respect to the custody of the child and the right of access to the child of either parent having regard to the welfare of the child and the conduct of the parent and the wishes of the father and mother of the child.

SALIENT POINTS TO NOTE

1. The only persons with the legal capacity to apply for the custody of a child are the child's biological parents i.e the father and mother of the child or the legal guardian of the child in a situation where the parents of the child are no more as provided by the CHILD RIGHTS ACT.

2.The CRA was passed in 2003 to domesticate the International convention on the rights of the child and so far is domesticated in 25 states of Nigeria.

3. Some other states are yet to domesticate the CRA

4. The law places a joint custody obligation on both parents and so snatching of children by family members who have no legal capacity for custody of the children by virtue of the CRA puts the offender at the risk of imprisonment

5. Parents must appoint a legal guardian for their children and ensure they follow due process of adoption where they are unable or unavailable to care for the child

6. What is in the best interest of the child is the sole purpose the courts look at before granting custody

7. The mother has as much rights as the father of the child, at such no parent should be denied custody of his or her child except in cases where the parent seeking custody has evidence to show that the interest of the child in question will not be guaranteed if custody is granted to the other party or there is evidence to show that the conduct of the parent is extremely harmful to the child. But there must be EVIDENCE to show remember the courts is not a father Christmas who rides on sentiments, cases before it are decided on preponderance of the evidence before it."he or she who asserts must prove".

If you have read this article and have further questions on child custody or guardianship you can direct your questions to the comment section on this post or email; lawgeeklegal@gmail.com

Or jadesfoundation4humanity@gmail.com.