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I want custody of my children

BY: The Mirror Lawyer
The principle of the law is that it is desirable to keep children together and not split them up.

DEAR Mirror Lawyer, I have been married to my husband for 11 years and we have been blessed with four children.

About a year ago, we had a misunderstanding and my husband threatened to leave our matrimonial home with our children.
I did not take him seriously, since this was not the first time he had made such a statement. True to his word, he left our home with two of our four children.
He does not cater for us and has refused to provide for the upkeep of his two children with me. Lawyer, he does not allow the children to visit either me or their siblings and has on countless occasions prevented the children with me from visiting the two children who are with him.

I am scared as this is beginning to affect the two children who are with me.
All four children have been together since they were born and I have been the one constantly taking care of them due to their father’s busy schedule.

I want to apply for custody but my husband keeps discouraging me and says that the court will never grant me custody. I want to know if there is any way I can have all four children.

I do not know what to do. Please help me.
Akosua Essuman, Sekondi

Dear Akosua, The court’s primary consideration when granting custody is the best interest of the child.
The Children’s Act of 1998 is the law that governs all matters relating to children in Ghana. Section 2 of

Act 560 provides that the welfare and best interest of the child shall be paramount in any matter concerning a child and shall be the primary consideration by any court, person, institution or other body in any matter concerned with the child.

Section 43 of Act 560 outlines the persons who can apply for the custody of a child.
They are a parent, family member or any person who is raising a child.

If you fall within the class of persons stated above, you can apply for the custody of your child. The application for custody of a child is made to the Family Tribunal.

In the case OFORI V OFORI [1981] G.L.R 745, the parties were married and lived in the United States of America with their two sons. They came to Ghana on holidays and the husband filed for divorce and asked for custody of the children.

The case could not be disposed off before the parties returned separately to the United States. They returned to Ghana after three months and the wife left the matrimonial home with the children. The court granted custody of the children to their mother and held that there was no need to disturb their education and upbringing by the mother in the United States.

From this principle, it is evident that the court may grant custody to a mother if it deems fit. As the mother of your children, you fall within the class who could apply for custody.

According to section 45 (2) (d) of Act 560 another factor the court must consider is the desirability to keep siblings together and the continuity in their care and control.

This principle has been applied in the case of OPOKU OWUSU V OPOKU OWUSU [1973] 2 GLR 349-354, where the husband was Ghanaian and the wife a German. After the marriage, they cohabited in Germany and later in Ghana.

They had four children. On the issue of custody after the divorce was granted, the husband prayed for custody of all four children.
The wife prayed for custody of the only daughter and the youngest child aged four years.

The court held that the children were Ghanaians, had lived in Ghana most of their lives and would not easily fit into the German community if taken there by the wife.
It was also desirable to keep them together and not split them up. Custody was thus granted to the husband.

When it comes to the maintenance of a child, Section 6 (3) (b) of Act 560 provides that every parent has rights and responsibilities whether imposed by law or otherwise towards his child. These rights and responsibilities include the duty to provide good guidance, care, assistance and maintenance for the child and assurance of the child’s survival and development.

Section 47 of Act 560 imposes a duty on a parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child to supply the necessaries of health, life, education and reasonable shelter for the child.
When it comes to the maintenance of a child, the court is required to make some considerations before making its orders.

(a) The income and wealth of both parents of the child or of the person legally liable to maintain the child;
(b) Any impairment of the earning capacity of the person with a duty to maintain the child;
(c) The financial responsibility of the person with respect to the maintenance of other children;
(d) The cost of living in the area where the child is resident;
(e) The rights of the child under this Act; and
(f) Any other matter which the Family Tribunal considers relevant.
The principle of the law is that it is desirable to keep children together and not split them up.

This means that when it comes to children, the court will do everything possible to ensure that siblings are kept together, especially if it will be in their best interest.