CUSTODY OF A CHILD - ON WHAT AMOUNTS TO CONSTRUCTIVE CUSTODY OF A CHILD UPON GRANT OF ORDER.

OKOBI V. OKOBI (2020) 1 NWLR (PT. 1705) 301 @ 342, Paras. A-F: 

"As between the parties before the Court, custody was given to the respondent (now appellant). The lower court has held on page 382 of the record (page 8 of the rulling) has made a finding that the appellant has flouted the order of court. The court held this position because the child is not in the physical custody of  the appellant since she travelled to the United States for her education and within that period the child has been in the physical custody of her mother. That is why the court said the appellant flouted the order of the court. The respondent has argued that the appellant cannot take custody by proxy. While the purport of the decision of the court is ordinarily that the child should be in the physical custody of the appellant, I however, do not think it is a violation of the order of the court because the child is effectively in the physical custody of the parents of the appellant. Even if the child is given to the respondent, he will not be in physical custody at all times with him as time may come when he will travel. He had even averred in his affidavit that the child will be with his own parents and sometimes nanny. In the absence of any specific order that the child must be in the physical custody of the mother (the appellant), a child in the custody of the grandparents of the appellant is constructively in the custody of the appellant. I do not agree that such a situation amounts to custody by proxy and that it is a violation of the order of the court." 

EXTRACTED BY: 

DANIEL KIP