Examining Custom, Bride Price, Paternity, Custody, Access and the Rights of the Biological Father
In many Nigerian communities, particularly in parts of South-East Nigeria, the birth of a child outside a valid marriage raises difficult questions of family identity, paternity, custody and customary ownership.
A common traditional position is that where a man has a child with a woman but has not married the woman or paid her bride price, the child belongs to the woman’s family rather than to the biological father. In some communities, the maternal grandfather is regarded as the child’s traditional father, particularly where the biological father has not completed the customary marriage process.
This raises an important legal question:
Can a maternal family lawfully prevent the biological father of a child born out of wedlock from having access to, or exercising parental rights over, his child merely because he did not marry the child’s mother or pay her bride price?
The answer requires a careful distinction between customary law, statutory law, constitutional rights, paternity, custody, and the welfare of the child.
1. The traditional position: “the child belongs to the mother’s family”
Under some customary systems in Nigeria, marriage is not merely a relationship between two individuals. It establishes relationships between families.
Consequently, where a woman has a child outside a recognised customary marriage, the child may traditionally be regarded as belonging to the woman’s family. The biological father may not automatically acquire the customary status of the child’s father simply by reason of biological paternity.
The rationale behind the custom is historically connected with the institution of customary marriage and the payment of bride price. In some communities, payment of bride price is an important incident of marriage and determines the relationship between the woman’s family, the husband and children born during the marriage.
Thus, it is sometimes argued that:
“Since the man did not marry the woman and did not pay her bride price, the child belongs to the mother’s father.”
That may describe a customary belief or rule applicable in a particular community. But it does not necessarily represent the complete position of Nigerian law today.
Customary law remains part of Nigerian law, but a customary rule must satisfy the requirements of validity and cannot prevail where it is inconsistent with written law, public policy or the principles of natural justice, equity and good conscience.
2. The important distinction between customary status and biological paternity
It is important not to confuse two different questions:
- Who is the biological father of the child?
- Who has custody or parental responsibility for the child?
Biological paternity and custody are not necessarily identical.
A man may establish that he is the biological father of a child, but that does not mean that he will automatically be awarded physical custody. Similarly, the fact that the mother has physical custody does not necessarily extinguish the father’s parental rights.
The ultimate consideration in a statutory custody proceeding is generally the welfare and best interests of the child, rather than the financial or marital relationship between the parents.
The Nigerian Child Rights Act expressly empowers the court, upon an application by either the father or mother, to make orders concerning custody and the right of access to the child, having regard to the welfare of the child, the conduct of the parents and their wishes.
3. The Constitution protects a child from discrimination because of the circumstances of birth
One of the most important provisions relevant to this subject is section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
It provides that:
No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
This constitutional provision is significant because it rejects the idea that a person should suffer legal disability merely because he or she was born outside marriage.
Therefore, describing a child as “illegitimate” or treating the child as inferior because the parents were not married cannot, by itself, justify depriving the child of rights recognised by Nigerian law.
The modern legal approach is increasingly child-centred rather than stigma-centred.
4. The Child Rights Act and the rights of the father
The Child Rights Act 2003 provides an important statutory framework for determining custody and access.
Under section 69(1)(a), the court may, on the application of the father or mother of a child, make such order as it considers appropriate concerning:
- custody of the child; and
- the right of access to the child of either parent.
In making the order, the court is required to consider the welfare of the child and the conduct of the parents, as well as the wishes of the parents.
Significantly, section 69(2) makes it clear that the court’s power to make an order concerning custody or access can be exercised even where the mother is not residing with the father.
This is particularly relevant to children born outside marriage.
The fact that the father and mother never married does not, by itself, make an application by the biological father for custody or access legally incompetent
5. What does the law say where bride price was never paid?
The mere fact that bride price was not paid cannot sensibly be treated as giving the maternal family an unrestricted legal power to prevent the biological father from seeing his child.
Indeed, Nigerian case law has long demonstrated the willingness of the courts to reject customary rules that produce an unjust result concerning the identity or custody of children.
A particularly important authority is Edet v. Essien (1932) 11 NLR 47.
In that case, a customary rule was relied upon to support a claim to children based upon the payment and non-refund of bride price. The court rejected the claim on the basis that it was contrary to natural justice, equity and good conscience to allow a man to claim children of another man merely because of the customary consequences attached to bride price.
The case remains important for demonstrating a fundamental principle:
Customary law cannot be applied mechanically where its application produces an outcome fundamentally inconsistent with natural justice, equity and good conscience.
This principle is particularly important where a customary rule is being invoked to deprive a biological parent of a relationship with his child.
6. The maternal grandfather does not automatically become the legal father simply because bride price was not paid
The proposition that:
“The child belongs to the father of the mother because the biological father did not pay bride price”
should therefore be approached with caution.
It may represent the customary position of a particular community, but it should not be presented as an absolute rule of law.
There is an important difference between customary family affiliation and legal determination of paternity and custody.
Where the biological father is known and acknowledges the child, or successfully establishes paternity, a maternal family cannot simply erase that biological relationship by asserting a customary claim.
The courts have historically recognised the importance of biological paternity. Scholarly discussion of Nigerian customary law also records the development from customary notions of maternal-family affiliation towards recognition of paternal acknowledgement and biological relationship.
7. What if the biological father has never acknowledged the child?
This presents a different situation.
Where a man merely alleges that he is the father but the mother or her family disputes paternity, the first issue may be determination of paternity.
The court may consider evidence such as:
- the circumstances of the relationship;
- admissions by either party;
- birth records;
- communications between the parties;
- evidence of the father’s conduct towards the child;
- evidence of acknowledgement;
- and, where appropriate and legally ordered, scientific/DNA evidence.
Once paternity is established, the father may then seek appropriate orders concerning custody, access, parental responsibility and maintenance.
A father who wants to exercise parental rights should therefore not simply attempt to take the child from the maternal family by force.
The proper course is to invoke the jurisdiction of the appropriate court.
8. The father does not have an automatic right to take the child away from the mother
It is equally important not to overstate the father’s position.
The law does not mean that every biological father is automatically entitled to physical custody merely because he is the biological father.
Custody is a judicial determination.
The court’s primary consideration is the welfare and best interests of the child.
For example, evidence that a parent is abusive, violent, habitually irresponsible, incapable of caring for the child, addicted to substances, or otherwise poses a danger to the child may affect the court’s decision.
Thus, the correct legal proposition is not:
“The father owns the child.”
Nor is it:
“The mother’s family owns the child.”
The child is not property.
The court determines custody and access according to the welfare of the child and the applicable law.
9. The father may seek access even where the mother has custody
This is perhaps the most practically important point.
A father who does not obtain physical custody may nevertheless be entitled to an order permitting him to maintain meaningful contact with his child.
Section 69 of the Child Rights Act expressly recognises the court’s power to make orders concerning the right of access of either parent.
Therefore, where a mother or maternal family refuses to allow a biological father to see his child, the father may approach the court for an appropriate access/visitation order.
- Such an order may regulate matters including:
- when the father may see the child;
- where the child may be taken;
- holidays and special occasions;
- telephone or video communication;
- collection and return arrangements;
- and other conditions necessary to protect the child’s welfare.
The court can therefore transform a disputed informal arrangement into an enforceable legal order.
10. What about maintenance?
The father’s rights do not exist independently of his responsibilities.
Fatherhood carries responsibilities as well as rights.
A father may have a legal obligation to contribute to the maintenance, education, health and general welfare of his child. Conversely, the fact that a father is denied access by the mother does not necessarily extinguish his obligation to support the child.
The Child Rights Act makes an important distinction between parental responsibility and the obligation to maintain a child. It expressly provides that the fact that a person has or does not have parental responsibility does not affect an obligation which that person may have in relation to the child, including a statutory duty to maintain the child.
Thus:
Access to the child and financial responsibility for the child are separate issues.
A father should not stop supporting his child simply because access is being obstructed. Equally, a parent should not use financial support as a bargaining tool for obtaining access.
11. The child’s inheritance rights
The legal position has also moved significantly away from treating children born outside marriage as persons without rights in their father’s estate.
In Salubi v. Nwariaku (2003) 7 NWLR (Pt. 819) 426, the Supreme Court dealt with children born out of wedlock whose paternity had been acknowledged by their deceased father.
The Supreme Court affirmed the position that the children born out of wedlock were entitled to share in the estate alongside the children of the lawful marriage.
The decision is important because it demonstrates the practical effect of the constitutional prohibition against deprivation merely because of the circumstances of birth.
Accordingly, the fact that a child was born outside marriage should not automatically be treated as destroying the child’s right to inherit from a recognised biological father.
The precise succession regime applicable to an estate will, however, depend on the circumstances, including whether the deceased made a will, the applicable statutory succession law and whether customary law governs the estate.
12. The child’s welfare is more important than the pride or dispute of the adults
Custody disputes involving children born outside marriage often become emotionally charged.
Sometimes the dispute is no longer about the child. It becomes a dispute between:
- the maternal family and paternal family;
- the mother and biological father;
- two extended families;
- or competing customary interests.
The court, however, is concerned principally with the child.
A child should not be used as a weapon in a disagreement between adults.
If the father is responsible and genuinely interested in the welfare of the child, denying him all contact simply because he did not marry the mother may be difficult to justify where the applicable child-rights legislation recognises parental access.Conversely, a father should not use biological paternity as a licence to disrupt the child’s life or disregard the child’s existing welfare and stability.
13. Can the maternal family themselves claim custody?
Extended family members do not automatically acquire superior custody rights merely because the child was born outside marriage.
Where a dispute arises, the court may consider the suitability of the various persons seeking custody or care of the child.
The fact that the maternal grandfather has traditionally been regarded as the child’s family head does not necessarily mean that he has an overriding statutory right to prevent both biological parents from exercising their parental rights.The child’s welfare remains central.
This is especially important in a modern legal system in which child protection legislation has expressly incorporated principles of non-discrimination and child welfare.
14. Customary law remains relevant, but it has limits
It would be incorrect to suggest that Nigerian courts have abolished customary law relating to children born outside marriage.
Nigeria operates a plural legal system. Customary law remains relevant in appropriate circumstances.
However, customary law is subject to legal tests.
A customary rule may be rejected where it is:
- inconsistent with a written law;
- contrary to public policy;
- repugnant to natural justice, equity and good conscience;
- or otherwise legally unenforceable.
This is why cases such as Edet v. Essien remain important.
The existence of a customary practice does not necessarily answer the question of whether the practice is enforceable by a modern Nigerian court.
15. The important lesson for parents
Where a man has fathered a child outside marriage, the absence of a marriage ceremony or payment of bride price should not be treated as the end of the matter.
If paternity is not disputed, the father should seek to maintain a responsible relationship with the child.
If access is being denied, he may seek appropriate legal orders.
If paternity is disputed, he should consider appropriate proceedings for determination of paternity.
If the mother or maternal family alleges that the child belongs exclusively to them under customary law, the validity and applicability of that custom should be examined against the Constitution, the applicable Child Rights Law and judicial authorities.
At the same time, a father seeking custody must understand that biological paternity is not synonymous with an automatic right to physical custody.
The question ultimately is: What arrangement best serves the welfare of the child?
16. Practical remedies available to a biological father
Depending on the circumstances of the case, a father whose access to his child is being denied may consider seeking:
- A declaration of paternity, where paternity is disputed.
- An order for custody, where custody is appropriate.
- An order for access or visitation, where the mother or maternal family is withholding access.
- An order for parental responsibility, where necessary.
- An order regulating communication with the child, including telephone and video calls.
- Maintenance-related orders, where appropriate.
- Protective or injunctive orders, where there is a genuine risk of the child being unlawfully removed or concealed.
- Other appropriate reliefs under the applicable Child Rights Law.
The precise reliefs and procedure will depend on the facts and the applicable state legislation and court rules.
17. Conclusion: A child is not the property of either family
The most important legal and moral principle is simple:
A child is not the property of the father, the mother, the maternal grandfather or the paternal family.
Custom may determine family relationships in important ways, but custom cannot be invoked as an unlimited licence to deprive a child of rights recognised by law or to arbitrarily extinguish a biological parent’s relationship with the child.
The Nigerian Constitution prohibits disability or deprivation merely because of the circumstances of a person’s birth.
The Child Rights Act provides a statutory mechanism through which a father or mother may approach the court for custody and access orders, with the welfare of the child at the centre of the inquiry.
The Supreme Court’s decision in Salubi v. Nwariaku further demonstrates that children born outside marriage are not, merely by reason of their birth, to be treated as legal outcasts in matters of inheritance.
And Edet v. Essien remains a powerful illustration of the principle that a customary rule capable of transferring parental claims away from the biological father merely because of the consequences of bride price may be rejected as repugnant to natural justice, equity and good conscience.
The better way to state the modern legal position is therefore this:
A child born outside wedlock does not become the property of the mother’s family merely because bride price was not paid. Nor does biological fatherhood automatically confer physical custody. Paternity, parental responsibility, custody and access are distinct legal questions, and where the matter comes before a court, the welfare and best interests of the child are paramount.