This document presents an overview of the legal provisions related to child custody under Liberian law, addressing scenarios such as married and separated parents, illegitimate children, and the legitimacy process. It outlines the rights and responsibilities of parents, the court's role in determining custody based on child welfare, and the process for legitimizing children born out of wedlock. Jurisdiction details for custody and legitimization proceedings are also provided, emphasizing the importance of the child's best interests in all decisions.

1. PRESENTED BY ATTY. LURY NKOUESSOM
LEGAL ASSOCIATE, THE CARTER CENTER

2.  At the end of this presentation, it is expected
that participants would have developed a
thorough understanding of the provisions of
the Law relating to the custody of children
including but not limited to:
- custody of children when parents living
together
- custody of children when parents living apart
- custody of children born out of wedlock

3. - Legitimization of children born out of
wedlock
- Legitimacy under customary Law
- Support of illegitimate children
- Inheritance of illegitimate children
- What court has jurisdiction over
custody and legitimacy of children

4.  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.

5.  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.

6.  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.

7.  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 its supposed 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 (Dixon vs. Ricks
Fleming 32 LLR, P.134 (1984)
 An illegitimate child belongs exclusively to the mother until
legitimized by the purported father

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

9.  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.
 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)

10.  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. Daniels
vs. Daniels 15 LLR (1964)

11.  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.

12. 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

13.  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.

14.  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.

15.  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.

16.  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

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

18.  What Court has jurisdiction over a child
legitimization proceedings?
 In the case KOLLIE vs. HILTON 22 LLR
p.503(1971), the Supreme Court has 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.

19.  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.

20. It is my sincere hope that
participants knowledge and
understanding of issues relating
to children custody under the
Liberian Law have been enhanced
through this presentation.