Can Child Custody and Maintenance Orders Be Modified in Nigeria?

Introduction

Court orders and judgments are generally considered final, subject only to appeal to higher courts or could be set aside in a few circumstances permitted by the law. This principle raises an important question in family law: can child custody and maintenance orders in Nigeria be modified by the courts that made the orders? This article will examine the legal framework for modifying child custody and maintenance orders in Nigeria. This will provide the much needed clarity needed to successfully navigate through the ever changing children’s needs and circumstances.

What Are Child Custody and Maintenance Orders in Nigeria?

Child custody determines which parent has the legal right and responsibility for a child’s care, while child maintenance refers to the financial support paid by one parent for the benefit of their child’s upbringing, education, and welfare. Section 71 of the Matrimonial Causes Act (MCA) empowers Nigerian courts to make orders regarding child custody and maintenance, with the paramount consideration being the welfare and best interests of the child.

Generally, when a court delivers judgment or makes an order, it becomes final and can only be challenged through:

1. An appeal to a higher court or
2. An application to set aside under the following circumstances:

1. When the judgment is obtained by fraud or deceit
2. When the judgment is a nullity and a person affected by the order is entitled ex debito justitiae to have it set aside
3. When the court was misled into giving judgment under the mistaken belief that parties had consented to it
4. Where judgment was given in the absence of jurisdiction
5. Where the procedure adopted deprived the decision of the character of legitimate adjudication

While a court typically becomes functus officio after making a final decision, child custody and maintenance orders are treated differently. The general rule is that once a court makes a full and final decision, neither it nor a court of coordinate jurisdiction can revisit that issue.

However, child custody and maintenance orders represent a significant exception to this rule. These orders, while appearing final, retain flexibility that enables modification by the same court that originally issued them, allowing adaptation to changes in circumstances affecting the child’s welfare.

This principle of law was authoritatively established in the landmark case of Okobi v. Okobi (2020) 1 NWLR (Pt. 1705) 301, where the Court of Appeal held:

“Orders of maintenance and custody of children are interlocutory orders in matrimonial proceedings for the purpose of an appeal. This is because though such orders appear final, they are subject to subsequent revision, suspension, or modification by the court which pronounced them. Therefore, the court that made an order of custody can vary the order without being accused of violating the principle of functus officio.”
(Functus officio refers to a situation where a court no longer has authority over a matter after a final judgment.)

Why Are Child Custody and Maintenance Orders Modifiable in Nigeria?

The courts’ power to modify child custody and maintenance orders stems from the recognition that:

1. Children’s needs evolve as they grow
2. Parents’ circumstances may change significantly
3. The best interests of the child remain paramount in all cases that affects the child
4. Rigid, unchangeable orders might not serve the child’s welfare over time

For instance, a custodial arrangement might need adjustment if one parent moves to a new location, or maintenance might need to be increased if a child’s educational needs change.

Furthermore, the party that filed the application for modification of the child’s custody or maintenance order has the burned to prove substantial change in circumstances since the making of the order that he/she seeks to modify. Additionally, to be successful, the applicant must show that the modification is in the best interest of the child.

For further information on child custody in Nigeria, our article on ‘ Child Custody in Nigeria: and How Courts Decide” is highly recommended.

Conclusion

The modifiable nature of child custody and maintenance orders reflects the law’s commitment to protecting children’s best interests above all else. This flexibility ensures that such orders can be adjusted to meet changing circumstances, allowing the legal framework to fulfill its primary purpose: safeguarding the welfare of children affected by matrimonial proceedings.

Have you encountered a situation where a child custody or maintenance order needed modification? Feel free to share your thoughts and experiences.

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