CAN ONE PARENT STOP THE OTHER PARENT FROM SEEING THEIR CHILD
A common problem associated with matrimonial disputes is always one parent refusing to allow the other parent to see or maintain contact with their child. Sometimes the refusal arises after a separation or divorce. In other cases, the parents were never married. In particularly difficult cases, one parent may take the child away, change the child’s residence or deliberately make it difficult for the other parent to communicate with or visit the child.
But does living with the child automatically give one parent the legal power to decide that the other parent can no longer see the child?
The law recognises the importance of the relationship between a child and both parents. However, this does not mean that either parent has an absolute or unrestricted right of access. Ultimately, the welfare and best interests of the child are paramount.
THERE IS A DIFFERENCE BETWEEN CUSTODY AND ACCESS
One of the first things to understand is that custody and access are not the same thing. Custody generally concerns the care, control and upbringing of a child. A court may place a child in the custody of one parent while giving the other parent a right of access.
Access, on the other hand, concerns the opportunity of a parent who does not have physical custody to maintain contact and a relationship with the child.
Therefore, a parent does not necessarily lose all connection with a child simply because the child lives primarily with the other parent.
Section 69(1) of the Child Rights Act 2003 expressly empowers the Court, upon the application of either the father or mother, to make orders concerning the custody of the child and the right of access of either parent, having regard to the welfare of the child, the conduct of the parents and their wishes.
This is a profound statutory recognition that custody and access are matters which the Court can regulate where parents cannot agree.
WHAT DOES THE LAW SAY ABOUT ACCESS TO A CHILD?
Section 69(1)(a) of the Child Rights Act 2003 provides that the Court may, on the application of the father or mother of a child, make such order as it deems fit regarding:
- the custody of the child and
- the right of access to the child of either parent.
In making the order, the Court must have regard to the welfare of the child and the conduct of the parent; and the wishes of the mother and father of the child.
The Act also permits the Court to alter, vary or discharge an existing custody or access order in appropriate circumstances. This means that where parents cannot agree on access, the solution is not for one parent to simply take the law into his or her own hands. The appropriate course may be to approach the Court for an order regulating custody and access.
THE CHILD IS NOT THE PROPERTY OF EITHER PARENT
It is common during family disputes to hear expressions such as: “My child.” Of course, a parent may naturally describe a child as “my child.” Legally, however, a custody dispute is not a contest over ownership of a child.
A child is a person with rights and interests of his or her own. The Court is therefore not primarily concerned with determining which parent has the stronger personal claim to the child. The central question is “What arrangement best serves the welfare and interests of the child?”
This principle has been firmly established by the Nigerian courts.
In Williams v. Williams (1987) 2 NWLR (Pt. 54) 66, the Supreme Court emphasised that the paramount consideration in custody proceedings is the welfare of the child. The Court explained that custody orders are not intended to punish a spouse for misconduct; rather, they should be directed towards achieving what is best for the children in the circumstances of the particular case.
Consequently, a parent should not assume that because the other parent was responsible for the breakdown of the marriage, or because the parents have serious disagreements, that parent should automatically lose access to the child.
Therefore, unless a court has made an order restricting or denying access for valid legal reasons, one parent has no legal right to hide the child or prevent the other parent from maintaining a relationship with the child.
Where a parent unlawfully denies the other parent access, the affected parent may approach the court for appropriate relief. The court has the power to make custody and access orders and can compel compliance where necessary.
The guiding principle in every custody and access dispute is the best interests and welfare of the child, not the personal disagreements between the parents.
BY GODWIN T. YARKWAN
Associate
A.O Ayeni & Associates