AN OVERVIEW OF THE LAW ON CHILD CUSTODY

CUSTODY OF CHILDREN WHEN PARENTS ARE MARRIED AND MAINTAIN ONE HOUSEHOLD

There is generally no problem about the custody of children when the husband and the wife are living together. A married woman is joint natural guardian with her husband of the minor children of their marriage while they are living together and maintain one household. Each such parent shall be equally charged with their care, nurture, welfare and education.

FATHER PARAMOUNT UPON SEPARATION

When the husband and the wife lives in a state of separation, the father shall be the custodian of the minor children of the marriage as against the claim of any person whomsoever. But if he is unable or morally unfit to perform his parental, legal, moral and natural duties toward his children or for any other reasons he fails or neglects to perform such duties, upon petition to a circuit court for a writ of habeas corpus or other appropriate relief and a showing in the proceedings thereon of such inability, moral unfitness or failure on the part of the father, the minor children of the marriage shall be entrusted to the mother or some other person who is capable of performing such duties.

If the father is dead or absent, the mother shall have custody of the minor children of their marriage unless it is established that she is unable or unfit or failing to perform her duties toward them.

When a minor child of a marriage in which either or both of the parents is or are deceased, is residing in this Republic, a grandparent(s) of such child, who is or are the parents of such deceased parent or parents, may apply to the circuit court for a writ of habeas corpus to have such child brought before the court; and on the return thereof, the court, by order, after due notice to the surviving parent, if any, or any other person or party having the care, custody and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation right(s) for such grandparent or grandparents in respect to such child.

CUSTODY OF CHILDREN BORN OUT OF WEDLOCK

According to the Domestic Relations Law and various case law authorities, a child born out of wedlock is exclusively presumed to be illegitimate unless such a presumption is rebutted by evidence of legitimization (acknowledgement or adoption) by his/her purported father.

A child born unto a couple not joined by matrimony rites either under the Liberian customary Law, the Religious law or the civil law is considered illegitimate.[1] An illegitimate child belongs exclusively to the mother until legitimized by the purported father. In our Country, marriages are brought about either by the performance of religious rites, civil ceremonies or the payment of dowry under the customary law. All these modes of matrimony are recognized as valid and unless either is performed between man and woman before a child is born to them, such child is illegitimate under the law at birth and, therefore, belongs exclusively to the mother until he/she is legitimized, acknowledged or adopted by the purported father.[2]

If the child’s natural father dies without legitimizing him or her, the surviving mother has the sole right to custody unless it can be proved to the satisfaction of the court that she is morally as well as economically unfit to care for the child.

Notwithstanding, the welfare of the child in most cases controls the determination of the court as to who should take custody of the child. It is even possible that a court might decide to award custody and/or guardianship to a perfect stranger, or to some relative who can sufficiently provide for the needs of the child. (See DRL Section 4.1). The environment need not be luxurious, but one that would afford the child a healthy and moral upbringing, satisfactory for learning and enterprise. All these provisions need not necessarily be luxurious, but basic enough to produce a useful child to society.

The test for the child’s benefit is not only the financial and legal consideration but also the comparative moral educational and social conditions of the party to be awarded the child’s custody. In fact the child’s welfare is the supreme consideration irrespective of the rights and wrongs of its contending parents although the natural rights of the parents are entitled to due consideration.[3]

LEGITIMIZATION OF CHILDREN BORN OUT OF WEDLOCK

There are two ways by which a child born out of wedlock can be legitimized:

1. When the parents subsequently intermarry

In any case where the natural parents of a child born out of wedlock shall lawfully intermarry, such child shall thereby become legitimated and shall become for all purposes the legitimate child of both parents and entitled to all the rights and privileges of legitimacy as if born during the wedlock of the parents.

2. Limited legitimization upon application of natural father

Upon an application made to the probate court by the natural father of a child born out of wedlock, such child may be legitimated with respect to such applicant and shall become for all purposes the legitimate child of such applicant and entitled to all the rights of legitimacy as if born during the lawful wedlock of the applicant

Upon receipt of such an application, the court shall issue a citation to the natural mother of the child who shall be served therewith together with a copy of the petition.

She may serve and file an objection to the proposed legitimization, limited to the sole ground that the applicant is not the natural father of the child.

After the hearing, if an objection has been filed and overruled, or if no objection has been filed, upon the return day of the citation, the court shall order the clerk of court to record the application, its date, the name of the applicant and the name and date of birth of the child, which record shall be admissible as full and sufficient evidence of the legitimacy of the child with respect to the applicant.

The clerk shall also prepare, sign and issue to the applicant a certified copy of such record.

SUPPORT OF ILLEGITIMATE CHILDREN

Under Section 5.3 of the Domestic Relations Law, a father is liable for the support of his child or children under 21 years of age.

But if any such child has been born out of wedlock and if the natural parents have not inter-married thereafter, the liability of the natural father shall not be enforceable unless he has adopted him, or has acknowledged or shall acknowledge before a justice of the peace or notary public and filed with the Registrar of Deeds or he has been legitimated. Or the father has been adjudicated to be the father of such child by a court of appropriate jurisdiction including the court making the determination for support

INHERITANCE OF CHILDREN BORN OUT OF WEDLOCK

It is generally admitted under the Law that children begotten out of lawful marriage cannot inherit from their purported father if the latter did not either acknowledge, adopt or legitimize them before his demise.

There are however few exceptions to this general rule.

The Supreme Court has held that if the siblings who are otherwise considered “legitimate” have recognized and dealt with other siblings who are otherwise considered “illegitimate” to be co-heirs of their deceased parents, then the “legitimate” heirs are barred from subsequently refusing to share with, deal with or recognize those “illegitimate siblings as heir of the deceased.[4]

JURISDICTION OF COURTS OVER CUSTODY AND LEGITIMIZATION PROCEEDINGS

• What Court has jurisdiction over a child legitimization proceedings?

In the case KOLLIE vs. HILTON 22 LLR p.503 (1971), the Supreme Court held that the Probate Court has exclusive original jurisdiction over legitimization proceedings. See also Judiciary Law section 5.2(k) and Domestic Relations Law section 4.92.

Where there is no probate court, the probate division of the circuit court has jurisdiction over legitimization proceedings.

What Court has jurisdiction over Custody of children proceedings?

The circuit court has jurisdiction in proceeding relating to children custody. The request for the custody of a child is also done through a writ of habeas corpus.

The writ of habeas corpus for the production of an adult prisoner is distinguishable from that for the award of custody of minor child; the primary consideration of the former being the relief from the physical restraint of liberty imposed without due process of law while that of the latter is the granting of better available conditions of custody in the best interest of the child and not relief from custody per se since a child must be in the custody of some competent person.

[1] (Dixon vs. Ricks Fleming 32 LLR, P.134 (1984)

[2] Ibid. Also see Maney and Kaymah vs. Money 2 LLR P.618 (1927)

[3] Daniels vs. Daniels 15 LLR (1964)

[4] See KING AND HOUSTON vs. COOPER-HARRIS 40 LLR P.70 (2000); KNOWLDEN vs. JOHNSON et al., 39 LLR P.345 (1998).

DIFFERENCE BETWEEN MARRIAGE AND “LOVING” AFFAIRS

WHAT IS MARRIAGE?

Marriage is a civil status, a personal relationship arising out of a civil contract between a male and female to mutually assume marital rights, duties and obligations, to which the consent of parties capable of making such a contract is essential. Domestic Relations Law Sec. 2.1

However, Consent alone will not constitute marriage; consent must be followed by the issuance of a license and solemnization as authorized by the Domestic Relations Law.

—  Example 1: Ben and Patience are 25 and 22 respectively. They are in love and consent to getting marry. They obtain their license and their marriage is solemnized by Pastor Emeka from Winner’s chapel who issues them a certificate. Marriage is formed in this case.

—  Example 2: Ali and Teta are two lovers who have shared the same household for three years now. Teta is adamant towards Ali that he should marry her. However, Ali convinces Teta that according to the “new Law” when a man and a woman live together for one year they can be considered as married people. There is no marriage in this case.

Marriage under the Customary Law, has the same definition as enshrined in the domestic relations law with the only difference being the payment of a dowry.

—  Example 1: Peter and Hope are in love and decide to get marry according to the Krahn tradition. Peter’s family and Hope’s family sit together and Peter pay 300 USD plus many other gifts including a car and wine. Marriage is formed in this case.

—  Example 2: Alex and Princess have been lovers for two years now. Alex decides to meet with Princess’ parents so as to inform them that their daughter will from now on be living with him and that if they are looking for her they should know that she will be with him. He buys a bottle of wine for the parents in the process. This will not be considered as a marriage since there was no formal payment of a dowry. (the main consideration here is how dowry is paid according to each tribe traditions or rites)

LEGAL IMPLICATIONS OF MARRIAGE AND LOVE AFFAIRS

1. Implications on the children

In Liberia, marriages are brought about either by the performance of Religious rites, civil ceremonies or the payment of dowry under the customary law. These modes of matrimony are recognized as valid and unless either is performed between man and woman before a child is born to them, such child is illegitimate under the law at birth and, therefore, belongs exclusively to the mother until he/she is legitimized, adopted or acknowledged by the purported father. (Dixon vs. Ricks Fleming 32 LLR, P.134 (1984)

Children begotten out of lawful marriage cannot inherit from their purported father if the latter did not either acknowledge, adopt or legitimize them before his demise. (Dixon vs. Ricks-Fleming 32 LLR, P.134 (1984)

Children born out of wedlock are automatically legitimated when their natural parents subsequently intermarry and become for all purposes the legitimate child of both parents and entitled to all the rights and privileges of legitimacy as if born during the wedlock of the parents (See DRL Sec. 4.91)

This also implies that if a woman has children born out of wedlock (who are not legitimized by the natural father), and then subsequently gets married to another man, such woman’s children cannot inherit from their stepfather (their mother’s husband) unless he adopts them.

Marriage of the mother and the stepfather in such case will not serve as a legitimacy tool for the children.

—  Example 1: Steve and Sarah give birth to Franck and Amie out of holy wedlock. Sarah and Steve later on separate without Steve legitimizing the two children. Sarah then meets Bill who decides to pay her dowry to her parents. Bill and Sarah give birth to a child that they name Paul. Bill does not adopt Sarah’s two children begotten out of wedlock. Upon Bill’s death, only Paul who was born in wedlock can inherit from Bill; Frank and Amie are not entitled to inherit from Bill but only rather from their mother Sarah.

—  Example 2: Thomas and Teta are two lovers who begot a child named Lomax out of wedlock. Thomas fails to legitimize Lomax and subsequently gets marry to Chantal with whom he has three children. Upon Thomas’ demise, Lomax cannot inherit from him since Lomax was not legitimize by Thomas while he was alive.

—  Example 3: Henry and Bernice give birth to two children that they named Victor and Pauline out of wedlock. Two years later, Henry pays Bernice’s dowry to her parents. Victor and Pauline who were illegitimate before the payment of the dowry will automatically be legitimated upon its payment. Henry in this case does not need to go to court to legitimize his two children.

II. Implications on property

Immediately after marriage, the wife shall be entitled to 1/3 of her husband’s property personal and real and vice-versa regardless whether he/she helped him/her to acquire said property.

The wife/husband and the children of their marriage, if any, are the prime beneficiaries of each other estate upon the death of one of the spouses according to the Statute of Descent and Distribution.

A husband cannot exclude his wife from his will or will to her less than 1/3 of his property that she is constitutionally entitled to.

When a wife as plaintiff prevails in an action to obtain a divorce, the court in the final judgment shall award her not less than one-fifth nor more than one-third of the defendant husband’s personal property outright and not less than one-fifth nor more than one-third of his real property for life

Parties in casual love affairs are not entitled to these rights.

Parties in casual love affairs who acquire property while sharing the same household will only get those properties bearing their name upon separation, i.e. property that they own.

They are not entitled to inherit from each other under the Statute of Descent and Distribution (Unless of course they will property to each other).

—  Example 1: Sompon and Catherine got married in the “you will never die” church. During their marriage, Sompon bought two cars and built four houses. Before their marriage, he owned three warehouses at redlight market on which he collected rent. Sompon and Catherine begot three children. Upon Sompon’s death, all his properties will be divided between his wife and his children only.

—  Example 2: Alice and Edward lived together for four years without Edward either paying Alice’s dowry or marrying her in church. During their time together, Edward bought a land which he probated and registered in his name, two beds and mattresses also in his name and a Nissan Patrol. Upon separation of Alice and Edward, Alice will have no interest whatsoever in Edward’s property.

NOTE

The Domestic Relations Law provides for damages for a party aggrieved as a result of a breach of promise, contract or engagement to marry, which fall under the category of injuries to domestic relations. (See DRL sec. 13.1 and 13.2)

Therefore, a party aggrieved as a result of a broken engagement, contract or promise to marry only remedy is to sue for damages for injury to domestic relations; provided however that the said aggrieved party is not responsible for the breach.

It is therefore important to make a clear distinction between marriage and engagement. While the first creates mutual obligations between the two parties, the second is just a promise which can be broken with the only legal consequence being the eventual payment of damages for injury to domestic relations.

—  Example: James and Patricia are two lovers. James proposed to marry Patricia and she agrees. An engagement party is organized where the two families meet formally and where James officially announces his intention of marrying Patricia. Few months later, James meets Precious and pays her dowry to her parents. Patricia can only sue James for breaking his promise to marry her but is not entitled to any of his property or to inherit from him in case of death.