Child custody battle: Who wins? - The case of Beckley v Beckley

The issue of child custody is one of the ancillary reliefs in divorce proceedings which is done by the courts with the general welfare and interest of the child/children as its pre-occupation.

Depending on the child’s age, courts in Ghana are mostly known to favor the mothers in the granting of custody. There have however been few instances where a man has been given custody of the children. 

Even in such an instance, it ought to be proven that the woman has such a character or behavior that is immorally infectious or will negatively influence the child’s proper upbringing.

In doing its work, the High Court which has jurisdiction in these matters also takes cognizance of provisions of the Children’s Act and other laws that guarantee the rights of children.

Let me re-iterate that one thing that has almost always been the pre-occupation of the courts is the general wellbeing and interest of the children.

To achieve this, the court delves into the living conditions of the parties in order to decide whose own will support the effective and proper growth of the children.

Through the services of Social Welfare Officers and even by interviewing the children, the court can establish for itself which of the parties is best to keep proper custody of the children.

In the classic case titled; BECKLEY vs. BECKLEY AND ANOTHER [1974]DLHC2261, the plaintiff, in her originating summons, prayed specifically for inter alia; 

(a) that the court may grant the plaintiff the custody of an infant, Edward Kofi Beckley; 

(b) that the court may grant reasonable maintenance for the support, care, and education of the said infant, and 

(c) that the first defendant, who is the plaintiff’s husband, be ordered to pay to the plaintiff reasonable maintenance for her support.

The plaintiff accused the husband of practicing Christianity and juju at the same time and that the juju was occupying him to the exclusion of almost everything.

On his part, the 1st defendant, the husband alleged that apart from making unreasonable demands, the wife had been unfaithful to him. He noted that she had been flirting all over the place, frequenting nightclubs and hotels which have a bad reputation and she had often been found in the company of other men, mostly white and Lebanese, in a most compromising manner.

The High Court per Abban J held in granting custody of Edward to his father, Mr. Beckley, as follows;

“Learned counsel for the father and the grandmother informed the court that Edward has become used to the house of the grandmother where the father has placed him and that he has settled down nicely, and he now speaks Ewe, his father’s language. In my opinion, to take Edward from that house to another household will not only be hard but there will also be an inevitable wrench to him and this would be most injurious to his welfare. In the interest of Edward, things should be left where they are; and I trust that the harmonious and happy relations which have hitherto existed between Edward and the grandmother, will not in any way be disturbed by the present proceedings.”

“For the above reasons, I will not grant custody of Edward to the wife. I order that Edward should remain with the husband, but I will give the wife generous access. That is, the husband should allow the wife to visit Edward at the week-ends. This order is subject to review from time to time.”

“I now turn to the issue of maintenance to the wife. In most cases where the spouses are living apart from one another, the question whether there has been wilful neglect to maintain depends on the same facts as the question whether or not there has been desertion on the part of either. In the case herein, the causes of the separation were explained in detail by the parties in their respective affidavits. In brief, the husband charged the wife with desertion and the wife counter-charged the husband with constructive desertion.”

 “Hitherto, there is a fine balance and there is not much to choose between the two versions. But there is this fact, that a husband may have a good defence to desertion but not necessarily an answer to wilful neglect to maintain.”

“Consequently, so long as it is not clear from the present state of affairs as regards the party responsible for the separation and the cessation of cohabitation, the obligation of the husband to maintain the wife remains. That is, the obligation of the husband to maintain, which existed when they were living together, should not be affected by the separation, the causes of which have not, at the moment, been satisfactorily established by either party.”

“What then is the reasonable amount which the husband, the first defendant, should in the circumstances of this case, pay to the wife. The wife is at present unemployed. She said she has been promised a job and so she will be in employment. She may or may not get the job. At any rate, the salary she will receive, in case she gets that job, is not known. The wife contended in her affidavit, filed on 22 November 1973, paragraph (14) that the husband earns at least ¢450.00 a month and owns a house in Accra.

I must say that the husband did not produce any satisfactory evidence about his income. He could easily have shown to the court, at least, his official pay slip for last month, in the same way as he showed to the court the medical card which was issued for the child to refute the allegation of having used juju practices to treat the child. The husband gave me the impression that he was not prepared to disclose his real income. Taking into consideration the submission and the affidavits filed, I am of the view that the husband’s take home pay will not be less than ¢400.00 a month.”

“I will, in the circumstances, order the husband to pay to the wife, ¢65.00 a month as maintenance, beginning from March 1974, until further order of this court. The interim order for maintenance made on 20 December 1973, should stand discharged as from 28 February 1974.

The plaintiff will be entitled to some costs which I fix at ¢200.00, inclusive a fee to counsel.”