PROCEDURE TO OBTAIN CHILD’S CUSTODY IN CAMEROON
Child custody in Cameroon is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person’s care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child.
Married parents in Cameroon normally have joint legal and physical custody of their children. Decisions about child custody in Cameroon typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In Cameroon child custody is determined in accordance with the best interests of the child standard.
Factors Influencing the Grant of Child Custody in Cameroon
Having established that the primary consideration for the grant of custody of a child is the welfare and interest of that child, the next step of our inquiry is “what constitutes best interest of children which must be put into consideration by a court when making an order of custody”? There is no hard and fast rule on what constitutes best interest of a child, as this will depend largely on the circumstances of each case. Karibi-Whyte JSC (as he then was) in the case of Williams v Williams,14 observed as follows:
“The determination of the welfare of a child is a composite of many factors. Consideration such as the emotional attachment to a particular parent, mother or father; the inadequacy of the facilities, such as educational, religious, or opportunities for proper upbringing are matters which may affect determination of who should have custody”.
It follows that where a party to a child custody proceeding can prove that it is not in the best interests of the child that custody of the child be granted to the other party, the courts will take this factor into consideration in reaching its decision. It is for this reason that it has been held in plethora of child custody cases that the evidence provided determines the outcome of child custody cases.
The “best interests of the child” is the universal standard used in determining child custody disputes. This principle of law is statutorily provided for in section 71 of the Matrimonial Causes Act and section 69 of the Child’s Rights Act 2003. In essence, a party seeking custody may be able to obtain custody if he/she can prove that he/she can provide sound education (emphasis being on sound) and for the physical and mental well-being of the child. He must also to an extent prove that the other party will/may deny the child these three factors.15
The Supreme Court per Obaseki JSC (as he then was) also held in Williams v Williams,16 that:
“It seems to me that order for custody must have in view the opportunity of sound education as well as physical and mental welfare. A parent who will deny these to his or her child is not worthy of an order for custody from the court.“
Furthermore, the Court of Appeal in Alabi v Alabi17 also considered factors determining who should have custody and held as follows:
“Thus, certain relevant criteria must be considered in the determination of the welfare of the child as in this case and they include:
- The degree of familiarity of the child with each of the parents (parties);
- The amount of affection by the child for each of the parent and vice versa;
- The respective incomes of the parties;
- Education of the Child;
- The fact that one of the parties now lives with a third party as either man or woman and;
- The fact that in the case of children of tender ages custody should normally be awarded to the mother unless other considerations make it undesirable etc.“
It has also become a trite principle of law that the conduct of a party claiming for custody is a major consideration. The Supreme Court per Obaseki JSC (as he then was) further held in the case of Williams v Williams,18
“The Welfare of an infant although the first and paramount consideration is not the sole consideration and the conduct of the parties is a matter to be taken into account.“
The above-cited authorities will strengthen the claim of a party if it can prove evidence of misconduct on the part of the opposing party. In like manner the court in Kolawole v. Kolawole19 refused to grant custody to a mother who had once tried to kill the child.
It is generally believed that girls should be in the care of their mothers whilst boys their fathers. There is, however, no rule of law which buttresses this belief hence courts are not bound to adhere to this rule of thumb. It is believed that the best interest principle will suffice in this respect.20 In Dawodu v. Dawodu21, the Court refused to grant custody to a mother who had no home of her own or private means to bring up the child because it was not in the best interest of the child to do so.
The important point remains that the outcome of child custody disputes largely depends on the facts of each case as well as the evidence placed before the Court. Similarly, the Courts have also pronounced on the guiding principles and considerations for a child born out of wedlock. In Muojekwu v Ejikeme,22the Court of Appeal provided a guiding principle on the custody of a child borne out of wedlock. It was held in the above case that:
“The Custody of any child born out of wedlock follows that of the mother in the absence of any person claiming custody of the child on the basis of being the natural father. Refer to Ben Enwonwu v Spira (supra) at p. 223. This must be so since the child must belong to a family and should not be rendered homeless for a situation he did not create.”
Having established that the welfare of the child is the paramount consideration, it is important to identify the different types of custody which might be granted by the courts. These are namely: Divided Custody; Split Custody; Joint Custody; Temporary Custody and Third-Party Custody which are all explained below.
- Divided Custody – this occurs where the court directs that a child lives with each parent for different parts of the year with reciprocal visitation privileges. When this occurs, the child is expected to be in the custody of one of the parents, who will in turn exercise complete control over the child.
- Split Custody – this occurs when the court grants custody to one parent while care and control of the child is granted to the other, in which case the parent vested with custody has the power to control the major decisions of the child’s future while the other parent controls the day-to-day physical upbringing of the child.
- Joint Custody – this usually happens when the court directs both parents to share responsibility and authority with respect to the child. The effect of this is that both parents are involved in the physical sharing of custodial rights over the child as well as participating in decisions affecting the child’s life such as education, medical problems etc. This is slightly different from split custody.
It should be noted that joint custody does not necessarily mean equal or fifty-fifty sharing of time since each case depends on the child’s age, parent’s availability & desires among other factors. Before an order of joint custody is made, the court must ensure that the parents would co-operate with each other, otherwise, such an order would be ineffectual.23
- Temporary Custody – this occurs where custody of a child is awarded to a parent temporarily pending the outcome of a separation or divorce proceedings. This power can be exercised where during a matrimonial proceeding, a dispute with respect to the custody, guardianship, welfare, maintenance, advancement, or education of the children of the marriage arises after the proceedings for the principal relief has been instituted.24
The Petitioner or Respondent may make an application for an interim order of custody pending the final determination of the Petition. The application may be made ex-parte in cases of extreme urgency or on notice to the other party. In cases of extreme urgency, an oral application may be made subject to the leave of court before the ex-parte application or application on notice is made.
- Third-Party Custody – this usually happens where the court considers it desirable to do so. It may place the child under the custody of a third party- a person other than a party to the marriage, either permanently or as an interim measure if it considers this to be in the child’s interest pursuant to the provisions of section 71(3) of the Matrimonial Causes Act. This order will be made if it is either obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the child or where neither of the parties to the marriage has applied for the custody or where in the opinion of the court, neither of the parties to the marriage is a fit and proper person to have the custody of the child.
However, it should be noted that it is usually in a situation where there is nothing before the court to disqualify any of the parties to the custody of the child that joint custody will be granted. In Williams v Williams25, it was held by Obaseki JSC:
“The position therefore is that there is no evidence before the Court to disqualify either parent from being awarded the custody of Kafialat Abimbola their daughter…. In the circumstances, an order for joint custody with care and control to the appellant and responsibility for education to the respondent will be most appropriate. It will meet the justice of the case and take care of the welfare of the child.”
Conclusion
In conclusion, the best interest of the child is the most important factor to be considered in the award of custody of a child which should ordinarily transcend material provisions of food, shelter, clothing to encompass the sociological and psychological well-being of the child.
Article by CHUO ANGABUA JUNIOR
‘’The content of this article is intended to provide a general guide to the subject matter. We insist specialist advice be sought depending on your specific circumstance’’
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