Who Is Granted Custody of the Children After a Marriage Dissolution?

CASE TITLE: AKINMOSIN v. AKINMOSIN (2023) LPELR-61125 (CA)

JUDGMENT DATE: 3RD OCTOBER, 2023

JUSTICES: OYEBISI FOLAYEMI OMOLEYE, JCA
CORDELIA IFEOMA JOMBO-OFO, JCA
YUSUF ALHAJI BASHIR, JCA

DIVISION: AKURE

PRACTICE AREA: MATRIMONIAL PROCEEDING(S)

FACTS:
This appeal is against the decision of the Ondo State High Court (Family Court) Akure, delivered on 11th day of June, 2019.

The Respondent initiated the action at the trial Court by way of a petition for dissolution of marriage and custody of children based on so many grounds, including cruelty, adultery, irresponsible behavior, lack of care and attention, etc., which collectively sums up to the fact that the marriage had broken down irretrievably. As a result, the parties have since separated and each has been on their own.

The Petitioner/Respondent therefore prayed the trial Court for a decree of dissolution of the marriage and custody of children of the marriage

Meanwhile, the Respondent/Appellant to the petition at the trial Court filed his answer to the petition on the 2nd day of May 2018, accompanied by a ross petition also asking for the dissolution of the marriage between him and the Petitioner/Cross Respondent on grounds of irresponsible attitude, adultery, desertion and so many other grounds.

After the exchange of pleadings, the matter went to full trial. The Respondent/Petitioner testified alone for herself and tendered documents, while the Appellant/Respondent before the trial Court testified and called two other witnesses. They tendered some documents equally. Counsel to the respective parties addressed the Court.

The Court finally entered judgment on the 11th day of June, 2019 and held that the Petitioner’s petition succeeded, the decree for the dissolution of the marriage between the parties was granted and the marriage was therefore dissolved.

The Petitioner was granted custody of the three issues of the marriage. The Respondent/Cross-Petitioner was ordered to pay a monthly stipend of N15,000.00 (Fifteen Thousand Naira) per child for their welfare and upkeep, aside from school fees, which he shall also pay in full. The Court also settled the control and ownership of property between the parties. The cross-petition of the cross-petitioner was dismissed.

The Appellant, dissatisfied with the decision, filed this appeal. The Respondent in the appeal also filed a cross-appeal challenging some aspects of the judgment of the trial Court in respect of the order for settlement of property.

ISSUE(S) FOR DETERMINATION:
The appeal was determined on the following issues:

a. Whether the trial Judge was right to have settled properties between the Appellant and the Respondent when neither of them in the petition and cross-petition claimed specifically any relief on settlement of properties.
b. Whether the trial Court was right in awarding custody of all the children of the marriage to respondent while at the same time ordering that the Appellant shall be fully responsible for the school fees and maintenance fee of N15,000.00 per child monthly for the three children without due regard to the principles pertaining to maintenance proceedings and the paramount interest/welfare of the children.
c. Whether, from all the evidence adduced before the Court, the trial Judge was right to hold that the evidence of the respondent based on the Petition outweighs that of the Appellant, thereby holding that the petition succeeds and dismissing the cross petition.

The Court also considered the merits of the cross-appeal.

COUNSEL SUBMISSIONS:
The Appellant’s counsel submitted that it is visible from the arrangement made for the children from the evidence available that the welfare and interests of the children would support the award of custody to the Appellant who would sure have more time for the children than a Banker, whose nature of work would make it impossible for her to give the children personal attention while at work. Citing the case of Williams v. Williams (1987), 2 NWLR PT. 54 PG 66.

It was further argued on behalf of the Appellant for the grant of custody that, being a businessman, there is enough time to spend with the children and that he has means of taking care of them compared to the Respondent whose lifetime all through the week is spent in the banking hall and who travels a lot for seminars and business meetings. In the worst-case scenario, considering the circumstances of this case, joint custody could be granted or in lieu, and the custody of the male child should be granted to the Appellant.

The Respondent’s counsel argued that the submission of the Appellant that the male child’s rightful and natural place is their father’s home will not hold water in this case. He buttressed further that the male child is still in his tender years and is very susceptible to parental influence.

He also submitted that the rightful place for the children is with the Respondent as there has not been a total bar on the Appellant in terms of access to the children. In her petition, it states that “the petitioner will allow the respondent access to the children during school holidays.” The learned trial Judge further supported this by stating in his judgment that “the respondent shall be granted free access to the children at all reasonable times.”.

Finally, the Respondent’s counsel submitted that the learned trial Judge was right to have ordered the Appellant to contribute towards the upkeep of the children and also towards their education; because it is the duty of the father. Citing the case of Adejumo v. Adejumo (2010) LPELR-3602 (CA),.

DECISION/HELD:

The appeal was partially allowed to the effect that the order granting custody of the children along with the orders for payment of maintenance to the respondent was sustained while the order concerning settlement of property not being specifically claimed was set aside.

Accordingly, the cross-appeal, having been anchored on incompetent or nonexistent relief, was deemed incompetent and was therefore, dismissed.

RATIO:

MATRIMONIAL CAUSES – CUSTODY OF A CHILD: Principles governing the grant of custody of children after the dissolution of a marriage

“It is necessary at this stage to state the trite position of the law in respect of the custody of children where a marriage has totally broken down like this one with no good prospect of making up to the extent that the couple are separated and consequently divorced and no longer live together. The Supreme Court had enunciated that in such circumstances, especially if the children are of tender age, it is presumed that the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear that the contrary is the situation. For example, immorality of the mother, infectious diseases on the mother, or case of insanity or her cruelty to the child. See ODOGWU v. ODOGWU (1992) 2 NWLR (Pt. 225) 539 at 560.

Evidence available in this case is that all three children of the marriage are of tender age or minors, namely:
(1) Miss Aanuoluwapo Akinmosin 12 years old.
(2) Master Adetoye Akinmosin aged 10 years old.
(3) Miss Moyo Akinmosin 8 years old.

S. 71 of the Matrimonial Cases Act, 1979, gives the Court some degree or latitude or discretion in determining to whom, between the father and the mother, would the custody of the children be granted.” Per BASHIR

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