Feminism and child custody laws in Nigeria: Rethinking gender assumptions in family justice

By Ayomiposi O. Akinade

In Nigeria, child custody issues are one of the most delicate cases in courts. During marriage breakdowns, the central issue of law tends to follow the question of who should take care of the children.

Law decisions made by courts should be based on the welfare of the child; there are cases when custody results seem to be based on some ancient social beliefs regarding gender and being a parent.

Discussion of these trends would lead one to conclude that there should be a more balanced approach that is more indicative of the principle of the best interest of the child.

According to the Child Rights Act 2003, the welfare and best interests of the child are the paramount factors that any court must put into consideration during a determination of custody. This principle gives priority to emotional health, stability, education, and general development of the child. The law does not give caregiving responsibility to either parent according to gender. Theoretically, mothers and fathers have the same status before the court in legal terms.

The plural legal environment in Nigeria makes the process of dealing with custody issues difficult. Family conflicts can be heard in both statutory courts and under customary and Sharia legal systems. These systems are commonly influenced by cultural expectations in the way that they interpret the family roles. Motherhood has been equated with caregiving, nurturing and emotional provisions in most societies. Fatherhood, on the other hand, is often linked with financial support. These social norms may have a silent effect on the perception of parental responsibility by the judges, family, and community groups.

This has led to a situation where the custodianship of younger children is often given to the mother even in instances where fathers are very committed to the upbringing of the children. The result might seem to be in line with cultural perceptions of family life; however, posing a valuable legal issue. When the considerations on custody decisions are based on the preconceived notions regarding gender roles, the principle of the best interest of a child might not get equal and diligent attention as required by the law.

An example of this is Nanna v. Nanna. In this case, the father wanted to have the children after they had been separated for two years. He introduced facts of financial ability and arrangements for their education. The mother, on the other hand, proved that she had been extensively participating in the day-to-day upbringing of the children, including schooling and daycare. The court ended up awarding custody to the mother, citing the value of her emotional presence and day-to-day role in the lives of the kids.

The result of that case tells us something significant: courts do not merely compensate for financial ability. They also examine emotional care and regular care. But the bigger picture in custody cases begs a question of the extent to which gender expectations could drive the legal decision-making.

In cases where courts believe that mothers are naturally more capable caregivers, capable fathers might find it difficult to prove their parental competency on par.

This issue has attracted the focus of researchers who examine family law using the perspective of feminist legal theory. In its legal meaning, feminism has no aim of giving an advantage to a gender. Instead, it challenges social structures which ascribe fixed roles to men and women. The marginalisation of women in political and legal authority was questioned in the early feminist scholarship.

Scholars, including Michael Flood, have suggested that the gender roles based on traditionalism may limit both men and women. Fathers who want to be nurturers might find social resistance when they view caring as the natural role of a woman. Johnny Rankin, on the same note, has noted that not all men are sharing the benefits of patriarchal systems the same way. Fathers who are heavily involved in the upbringing of their children might end up being disadvantaged within the legal procedures that are based on ancient beliefs.

Feminist legal analysis in this light can be used to provide a constructive approach to the re-evaluation of the decision on custody. Instead of motherhood being assumed as the backbone of the framework of caregiving, Judges and Courts might better pay attention to the real parenting history of both parents. The key questions would be who has taken care of the child daily, who is supporting the education of the child, and who keeps the child emotionally stable in life.

It has also been indicated in research that legal neutrality may not always produce a neutral result. Research by academics like Chinwe Diriwari and Faith Derri observes that, in spite of the fact that the Child Rights Act creates a child-centred approach, local traditions and social norms tend to influence the practice of the law. Custodial fathers can thus be faced with obstacles which are not necessarily due to their parenting skills but due to cultural attitudes towards parenting roles.

A more reasonable way to address custody disputes would be to have courts look at facts of caring without having to use their assumptions about gender. The legal judgment should be based mainly on parenting capability, emotional availability, stability and commitment to the growth of the child.

 In most situations, mothers can be the best caregivers. There are other situations where fathers can be more capable of delivering stability and support. Both possibilities should be allowed to exist freely in the law.

Nigeria has a clear legal framework for the commitment to the welfare of the child. The question is how to make this principle work in practice without the silent force of gender stereotypes. A custody system that considers the actual care of parents and not the gender would be more beneficial to children and enhance family justice fairness in Nigeria.

About the Author

Akinade, Ayomiposi Omoniyi, is a graduate of Political Science and currently an MSc candidate in Gender and Development Studies at Obafemi Awolowo University, Ile-Ife. He is passionate about governance, gender equity, and public policy, with a keen interest in advocating for social justice and inclusive development.