WHO GETS CUSTODY OF THE CHILD AFTER DIVORCE? WHAT GHANAIAN LAW SAYS

When a marriage breaks down, one of the most difficult questions is often not “Who gets the house?” but “Who gets the children?”. Many people assume that the mother automatically gets custody because she is the mother. Others believe that the father has the stronger claim because he earns more money. Neither is automatically true.

Under Ghanaian law, the central question is the welfare and best interests of the child. The court is not deciding which parent won the divorce. It is deciding what arrangement is best for the child. The main legal framework includes the Matrimonial Causes Act, 1971 (Act 367) and Ghana’s child-protection laws.

What Does Custody Actually Mean?

Custody generally concerns the care and control of a child. It is different from:

• Access — the right of a parent to spend time with the child;
•  Maintenance — the financial responsibility to support the child and
• Guardianship — broader legal responsibility for the child.

Therefore, a parent may not have custody but may still have the right to see the child and remain involved in the child’s life

Can a Father Contest Custody?

YES.

A father can apply for custody, and a mother can equally contest a father’s application. The important question is not, “Is the parent a mother or a father?”. It is, “What arrangement is best for this child?”

Section 22 of the Matrimonial Causes Act gives the court power to make orders concerning custody, access, education and maintenance where those orders are reasonable and beneficial to the child.

Does the Mother Automatically Get Custody?

NO.

There is no automatic rule that says the mother must receive custody simply because she is the mother. Likewise, the father does not automatically get custody because he earns more money. The court may consider matters such as:

• the child’s age;
• education;
• health;
• emotional wellbeing;
•  living arrangements;
• relationship with each parent;
•  stability of the proposed home;
• each parent’s ability to care for the child;
• the child’s daily routine;
•  safety; and
•  any evidence of abuse or neglect.

Money is relevant because children need financial support, but money alone does not determine custody. That means, A parent earning GH¢50,000 a month does not automatically defeat a parent earning GH¢5,000.

What Does “The Welfare of the Child” Mean?

This is one of the most important ideas in custody cases. The court is essentially asking, what arrangement will give this child the best chance of being safe, cared for, supported and properly raised?

For example, where will the child live? Who will take the child to school? Who will handle medical care? What will the child’s daily routine look like? Who will care for the child when the parent is at work? How will the child maintain a relationship with the other parent? These questions are often more important than which parent has the better argument against the other.

Your Divorce Problems Are Not Automatically Custody Problems

This is a mistake many parents make. A person may have been a bad husband or wife without necessarily being a bad parent. For example, a spouse may have cheated during the marriage. That may be relevant to the divorce, but it does not automatically mean that the person is unfit to care for the children. Similarly, a parent may have a good income and respectable social standing but still have conduct that makes them unsuitable to have custody. The court must focus on the child, not simply punish a parent for what happened during the marriage.

What If the Other Parent Is Abusive or Neglectful?

This can significantly affect a custody decision. If a parent genuinely believes that the other parent is physically abusive, sexually abusive, emotionally abusive, neglectful, abusing drugs or other substances, exposing the child to dangerous situations or seriously neglecting the child’s education or healthcare, those concerns should be brought to the attention of the court and supported by credible evidence.

Serious allegations should not be invented or exaggerated simply to gain an advantage in a custody dispute. A custody case is not the place for revenge.

Can One Parent Stop the Other Parent from Seeing the Child?

NO, not simply because they have custody. Custody and access are separate issues.

For example, a mother may have custody of the child, but the father may still have a right to reasonable access. Likewise, a father with custody should not assume, “The child lives with me, so I can decide whether the mother sees the child.” The court can make orders regulating access. Where there are genuine safety concerns, however, access may be restricted or structured differently depending on the circumstances.

What If the Other Parent Takes the Child and Refuses to Return Them?

This can become a serious legal issue. If one parent refuses to return the child after an agreed period of access, or deliberately prevents the other parent from having contact, the affected parent should seek legal assistance promptly. The court can make appropriate orders concerning custody and access. Do not try to solve a serious custody dispute through force or confrontation.

What If One Parent Wants to Take the Child Outside Ghana?

This is particularly important where there is a risk that a child may be taken out of Ghana without the consent of the other parent or appropriate legal authority. If you genuinely believe that the other parent intends to remove the child from Ghana or relocate the child without agreement, tell your lawyer immediately. Do not wait until the child has already left the country. The appropriate legal response will depend on the circumstances and the orders already in place.

Does the Parent with Custody Have to Pay for Everything?

NO.

Custody and maintenance are different issues. Section 22 of Act 367 allows the court to make orders concerning the child’s education and maintenance from the property or income of either or both parents.

Therefore, having custody does not mean the other parent has no financial responsibility and paying school fees does not automatically give a parent custody. Both parents may have financial responsibilities towards the child.

What If the Child Says, “I Want to Live with Daddy”?

The child’s views may be relevant, depending on the child’s age, maturity and circumstances. But a child does not simply get to choose which parent to live with because they prefer one parent. The court remains responsible for determining what is in the child’s best interests. This is particularly important where there is evidence that a child has been pressured or influenced by one parent.

Never Coach Your Child

A parent should never tell a child, “When the judge asks, tell them you want to live with me.” nor should a parent coach a child to make allegations against the other parent.

Children should not be dragged into the parents’ marital conflict unnecessarily. The focus should remain on protecting the child from further emotional harm.

How Do You Build a Strong Custody Case?

If you genuinely want custody, do not build your case around attacking your former spouse. Build it around the child. Show the court;

Stability- Where will the child live?

Care- Who will look after the child every day?

Education- How will the child’s schooling be maintained?

Healthcare- How will the child’s medical needs be handled?

Safety– Is the proposed home a safe environment?

Emotional support– What relationship does the child have with you?

A workable parenting arrangement.

How will the child maintain a healthy relationship with the other parent?

Where necessary, support your case with documents, school records, medical records, photographs, correspondence and credible witnesses.

What Is the Biggest Mistake Parents Make?

The biggest mistake is treating custody as a prize awarded to the better spouse. It is not.

The court is not deciding, “Which parent was right in the marriage? It is deciding, “What arrangement is best for this child?”. That distinction is extremely important.

Can Custody Be Changed Later?

YES, custody arrangements are not necessarily permanent for all circumstances. As the child grows and circumstances change, a parent may need to seek a variation of an existing arrangement where there are proper grounds for doing so. For example, circumstances involving the child’s education, health, safety, living arrangements or the conduct of a parent may change. The welfare of the child remains the central consideration.

Conclusion

When parents contest custody during a divorce in Ghana, the strongest case is not necessarily the one with the most accusations. It is the one that clearly demonstrates who can provide stability? Who can provide proper care? Who can keep the child safe? Who can support the child’s education and development? What arrangement will allow the child to maintain healthy relationships where appropriate?

Under section 22 of the Matrimonial Causes Act, the court has power to make orders concerning custody, access, education and maintenance where those orders are reasonable and beneficial to the child. At the end of the day, custody is not about which parent wins, it is about what is best for the child.