Under Islamic family law as applied in the Sharia courts of northern Nigeria, the general presumption in custody matters (known as hadanah) favours the mother, particularly in respect of children of tender years. However, this presumption is not absolute. Nigerian Sharia jurisprudence recognises numerous circumstances in which the father may be entitled to seek and obtain custody of children after divorce, each grounded in the overriding principle that the welfare and best interests of the child take precedence over the rights of either parent.
A compilation of decided Sharia cases reveals at least 30 recognised grounds upon which a father may seek custody, spanning issues of the mother’s conduct, capacity, living arrangements, and ability to provide a safe, stable, and nurturing environment.
Moral and Behavioural Grounds
The first category of grounds relates to the mother’s moral conduct and personal behaviour.
Where the mother is found to be immoral or unchaste, the father can seek custody of the child. The rationale is that the moral environment in which a child is raised directly affects the child’s character formation and spiritual development, considerations that are central to Islamic child welfare principles (Amina v. Ibrahim (2015) NWLR (Pt. 1481) 247).
Where the mother has a history of domestic violence, the father can seek custody on the ground that the child’s physical safety is at risk in the mother’s care (Khadija v. Abubakar (2015) NWLR (Pt. 1491) 201).
Where the mother is involved in illegal activities that may harm the child, the father can seek custody on the ground that the child’s welfare is compromised by exposure to criminal conduct (Nafisa v. Tijjani (2019) NWLR (Pt. 1681) 301).
Where the mother is involved in a cult or extremist group that may harm the child, the father can similarly seek custody on the ground that the child’s physical and spiritual safety is endangered (Hafsat v. Lawal (2013) NWLR (Pt. 1341) 151).
Where the mother is involved in activities that may harm the child’s reputation, the father can seek custody to protect the child’s social standing and future prospects (Fatima v. Ali (2012) NWLR (Pt. 1301) 121).
Neglect and Abandonment
The second category addresses situations where the mother fails to provide adequate care or abandons the child entirely.
Where the mother is found to be neglecting the child or unable to provide proper care, the father can seek custody on the ground that the child’s basic needs are not being met (Fatima v. Ali (2012) NWLR (Pt. 1301) 121).
Where the mother abandons the child, the father can seek custody. Abandonment represents a complete abdication of the mother’s parental responsibility and constitutes one of the clearest grounds for transferring custody (Zainab v. Adamu (2017) NWLR (Pt. 1581) 211).
Where the mother has a history of abandoning the child, meaning a pattern of leaving the child without adequate care on multiple occasions, the father can seek custody on the basis that the pattern demonstrates an inability or unwillingness to fulfil parental duties consistently (Amina v. Ibrahim (2015) NWLR (Pt. 1481) 247).
Where the mother has a history of child abuse, the father can seek custody on the ground that the child’s physical and emotional safety is directly at risk (Amina v. Ibrahim (2015) NWLR (Pt. 1481) 247).
Capacity and Health Grounds
The third category addresses the mother’s mental and physical capacity to care for the child.
Where the mother is mentally or physically incapacitated, the father can seek custody on the ground that the mother is unable, through no fault of her own, to provide the level of care that the child requires (Rahma v. Sani (2014) NWLR (Pt. 1421) 131).
Where the mother is imprisoned, the father can seek custody on the practical ground that the mother is physically unable to care for the child during her incarceration (Hafsat v. Lawal (2013) NWLR (Pt. 1341) 151).
Where the mother is addicted to substances or has a history of substance abuse, the father can seek custody on the ground that the addiction compromises the mother’s ability to provide safe and consistent care (Nafisa v. Tijjani (2019) NWLR (Pt. 1681) 301).
Remarriage
Under Sharia law, the mother’s remarriage is a recognised ground upon which the father can seek custody, particularly if the new husband is not a suitable guardian for the child. The concern is that the child’s welfare may be compromised in a household where the primary caregiver’s attention is divided between the child of the previous marriage and the new marital relationship, and where the new husband may not have the same degree of natural affection and concern for the child as the biological father (Habiba v. Abdullahi (2018) NWLR (Pt. 1641) 341).
Financial Grounds
Where the mother lacks the financial resources to provide for the child, the father can seek custody on the ground that the child’s material needs, including food, shelter, clothing, and education, cannot be adequately met in the mother’s care (Khadija v. Abubakar (2015) NWLR (Pt. 1491) 201).
Environmental and Stability Grounds
A significant category of grounds relates to the mother’s ability to provide a stable, safe, and suitable environment for the child’s development.
Where the mother fails to provide a stable home environment, the father can seek custody on the ground that the child needs consistency and stability for healthy development (Habiba v. Abdullahi (2018) NWLR (Pt. 1641) 341).
Where the mother fails to provide a safe environment, the father can seek custody on the ground that the child’s physical safety is at risk (Nafisa v. Tijjani (2019) NWLR (Pt. 1681) 301).
Where the mother fails to provide a stable family environment, the father can seek custody on the basis that the child requires a consistent family structure (Khadija v. Abubakar (2015) NWLR (Pt. 1491) 201).
Where the mother fails to provide a stable routine for the child, the father can seek custody on the ground that routine and predictability are essential for the child’s emotional and developmental welfare (Rahma v. Sani (2014) NWLR (Pt. 1421) 131).
