Child custody when both parents are not married

Bad Parenting

Sequel to my last post, on child custody in divorce cases, a friend asked me how custody will be determined when both parents are not married at all; either under Marriage Act(Court marriage), Islamic law or Customary Marriage.

When this happens, the Court will still have jurisdiction to determine which of the parents should have custody even when both parents are not married at all, because:

1. Order 22 Child Rights Act enforcement procedure FCT provides that:

“Where the father and mother were not married as at the time of birth of a child may apply for the parental responsibility of the child or the father and mother may agree to have joint parental responsibility under a parental responsibility agreement…”

2. Part VIII. Of the Child Rights Act provides for Child custody when both parents are not married.

In section 68 and 69 of the Child Rights Act, any of the parent can apply for custody of he child nothwithstanding that both parents are not married at all. The decision of which of the two parents would be granted custody of the child is based solely on the best interest of the child, this makes facts and evidence presented by the party wanting custody very important.

So where a child is born to a parent who are not married either under customary, marriage Act or Islamic law; either or both of the parents can make a formal application to Court for custody of such child. The Court will decide who to give custody based on the Child’s best interest with available fact and evidence.


a. Taking a child out of the mother’s custody if the child is originally with the mother, without valid Court Order is illegal and punishable with imprisonment. Section 27 Child Rights Act and Section 26 Lagos State Child Rights Law

b. Where the Court orders that a father or mother pays for the maintenance of a child(e.g school fees, cloths, feeding etc) and such person fails or refuses to make such payment, the Court can order that such parents pension, income, benefits be used to satisfy the payment.


Opatola Victor Esq.


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