November 6, 2025

DIFFERENCE BETWEEN GUARDIANSHIP AND CUSTODY IN LAGOS: ULTIMATE THING YOU NEED TO KNOW

by Ekosolicitors

BETWEEN GUARDIANSHIP AND CUSTODY

In Family Law, the terms “guardianship” and “custody” are similar concepts but carry different legal implications. The main goal of guardianship and custody is the protection of the child, but they cannot be used interchangeably. Both concepts play a vital role in a child’s growth and development. The welfare and best interests of the child are the core elements of guardianship and custody provisions.

Understanding the differences between custody and guardianship is crucial, as it determines who is legally responsible for a child’s upbringing and general welfare. The legal frameworks for both concepts address the rights and obligations parents and guardians have towards children. Statutory provisions regulating guardianship and custody in Nigeria can be found in: the Child’s Rights Act 2003, the Matrimonial Causes Act, the Guardianship of Infants Act (1958), and the relevant state-level laws.

MEANING OF CUSTODY

In Nwosu v Nwosu, the court defined custody as the care, control, and maintenance of a child awarded to a responsible adult. According to Black’s law dictionary, custody is the authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and health care. Custody also involves the physical and legal care of a child, granted during or after a marital breakdown. Under Section 69 of the Matrimonial Causes Act (MCA), custody is one of the reliefs that may be sought in matrimonial proceedings.

The court has discretion to grant sole custody to one parent or joint custody to both. Whichever party custody is granted to depend on what serves the best interest of the child. In Williams v. Williams, the Court noted that the welfare of the child is the paramount consideration in custody matters. It was held in Odusote v. Odusote, that custody is neither a reward for good conduct nor punishment for misconduct. However, it is a means to secure the child’s welfare and stability. In granting custody, the court considers some factors. These factors include the best interest of the child, age and gender, parent/guardian’s financial capacity etc.

MEANING OF GUARDIANSHIP

Guardianship involves a legal relationship in which a person is vested with parental responsibility over the child’s person, property. It often comes into play when one or both parents are deceased, incapacitated, or unfit to care for the child. Guardianship can be granted by courts or appointed through a will. It could also be either temporary or permanent, depending on the circumstances. Guardianship is statutorily provided for in the Guardianship of Infants Act (1958) and Sections 83–87 of the Child’s Rights Act (CRA) 2003. These provisions empower the court to appoint, vary, or remove a guardian for the best interest of the child.

Guardians are granted legal authority by the court to make decisions regarding the child’s education, healthcare, and general well-being. In essence, they step into the shoes of the child’s parents and assume full responsibility for their upbringing. Guardianship may be testamentary i.e. appointed by will, or statutory i.e. appointed by the court. In Okobi v. Okobi, the Court held guardianship grants long-term legal authority for major decisions regarding a child’s welfare. Similarly, in Okwueze v. Okwueze, guardianship appointments was said to always be guided by the child’s paramount best interest.

DIFFERENCES BETWEEN GUARDIANSHIP AND CUSTODY

As similar as both concepts are under Nigerian family law, there are certain distinguishing elements. These elements include:

Nature: Custody is the physical care and control of a child. It is awarded during divorce or separation proceedings, determining which parent will live with and directly care for the child. Guardianship, however is the legal right given to an individual to make major decisions on behalf of a child. Guardianship is granted by the court especially when the parents are deceased, incapacitated, or deemed unfit.
Scope: Custody is primarily concerned with day-to-day care, welfare, and upbringing of the child. It involves decisions about the child’s education, healthcare, and general well-being within the household. Guardianship includes both physical custody and the authority to make decisions which are in the best interest of the child. The guardian also has the duty to manage the child’s estate or financial interests.
Duration: Custody lasts until the child reaches the age of majority, which is 18 years under Nigerian law. Guardianship also lasts until the child turns 18. However, it can extend beyond if the child has mental or physical disabilities requiring continued care.
Parental rights: Custody doesn’t take away the legal status of a parent. In some cases, one may have physical custody while the other has visitation rights or joint custody. In guardianship, a guardian temporarily or permanently assumes parental rights. Where both parents are deceased or unfit, the guardian steps into the role of the parent under law.
Decision making authority: A parent with custody has authority over the child’s daily activities, schooling, healthcare, and religious upbringing. However, major decisions may still require input from the non-custodial parent if joint custody exists. A guardian often has broader legal authority, including making financial, medical, educational, and legal decisions for the child. This authority can be absolute or limited depending on the type of guardianship granted by the court.
Termination: Custody can be terminated if the custodian is found not to be acting in the best interest of the child. The court can also terminate custody upon circumstances like child neglect and abuse, or a parent becoming unfit.

Guardianship can be terminated when the child attains adulthood, the death or resignation of the guardian. The court may revoke an order of guardianship if the guardian is no longer acting in the child’s best interests.

CONCLUSION

In conclusion, while both custody and guardianship are designed to protect a child’s well-being, they serve different legal functions. Nigerian courts have consistently maintained that the welfare of the child is the paramount consideration in custody and guardianship cases. In Alabi v. Alabi, the court held that custody and guardianship are duties, not rights, held for the child’s benefit. Thus, the court’s primary concern remains the child’s moral, emotional, and physical wellbeing.

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