When couples in Ghana have children outside marriage, the relationship often carries on smoothly until it doesn’t. And by “it doesn’t,” I mean, suddenly, diapers, school fees, and custody questions collide with emotions. It is at that point when emotions are sharp, routines are broken, and communication is strained that the question of what happens to the child becomes unavoidable. Where will the child live? Who will make the major decisions? Who gets to decide if the child is permitted to eat ice cream before dinner? How is each parent’s role defined when the law, tradition, and personal expectations collide? But as soon as lawyers, tribunals, and parental pride get involved, simple questions start feeling like quantum physics. Although many assume the law is murky in this area, Ghana’s legal framework is actually clear, consistent, and firmly anchored in one overriding principle: the child’s welfare trumps everything. Every single time!

 

Establishing Paternity

For unmarried parents, the first legal question is usually paternity. Sometimes, it’s straightforward: the father signs the birth certificate, smiles, and thinks his job is done. Spoiler alert: it is not. The name on a birth certificate is evidence of acknowledgement, not conclusive proof of biological paternity when a dispute arises. Where paternity is contested, the Courts have the power to order DNA testing, and a party’s refusal to submit to such testing is frequently treated as adverse to that party’s case. Yes, refusing a test can be interpreted as “I might be the father, but let’s make it dramatic.”. Once paternity is legally settled, all rights and responsibilities, custody claims, access, and maintenance, attach immediately.

 

The Legal Foundation: No Automatic Custody Rights

Ghana’s Children’s Act, 1998 (Act 560) places unmarried parents on the same legal plane as married ones when it comes to parental responsibility. Parenthood, not marriage, creates the duty to care for, maintain, educate, and protect a child. When the relationship breaks down, one parent may become the primary caregiver simply because the child must have a stable residence, not because the law presumes superiority in either parent.

 

Historically, common-law favoured fathers as custodians, which later swung in favour of mothers, especially for younger children. But the modern legal approach, both internationally and locally, has abandoned these presumptions in favour of the Welfare Principle. This shift traces back to classic English authorities that still guide Ghanaian Courts. In Re McGrath (Infants) [1893] 1 Ch 143, the Court held that a child’s welfare must be considered “in its widest sense,” meaning not merely physical needs, but emotional, educational, and psychological stability. Likewise, R v Gyngall [1893] 2 QB 232 emphasized that the Court must examine every circumstance surrounding a child’s life: age, security, happiness, parental behaviour, and future prospects.

 

Act 560 adopts this philosophy at its core. Section 45 tells the Family Tribunal one thing; the child’s best interest comes first. For younger children, the mother–child bond matters too but this is guidance, not a hard rule. The provision requires the Court to look at continuity of care, the child’s age, the desirability of keeping siblings together, the child’s independently-expressed views, and any other factor relevant to the child’s welfare. No two families are alike, so no custody decision is formulaic. Courts now recognize that fathers can change diapers and mothers can work long hours, so gender is no longer a deciding factor.

 

This approach aligns with the reasoning in In re O (An Infant) [1965] 1 Ch 23, which stresses that the Court must consider the whole background of the child’s life, including whether each parent is genuinely prepared to fulfil their duties. Similarly, the Supreme Court in Mensah v Mensah (2012) reaffirmed that the welfare of the child is the “cardinal” and overriding consideration. Wealth, blame for the breakup, and parental pride all take a back seat. Earlier authorities such as Annor v Annor (1965) underscore the same point: custody decisions exist to create stability and protection for the child, not to reward or punish parents.

 

Ghanaian case law reinforces this consistently. In Attu v Attu [1984–86] 2 GLR 743, the Court stressed that every relevant fact, conduct, environment, emotional ties, and parental capacity must be weighed. Opoku-Owusu v Opoku-Owusu [1973] 2 GLR 349 reminded Courts that their duty is to protect children regardless of parental wishes. While Bentsi-Enchill v Bentsi-Enchill [1976] 2 GLR acknowledged that very young or vulnerable children were traditionally placed with mothers, the Court still rooted its reasoning in welfare, not gender. Modern Courts, aware of the changing realities of parenting roles, apply this flexibility.

 

One theme runs through all of these decisions: there is no superior parental right, only an obligation to protect the child’s welfare. For instance, when parents live far apart, Accra and Kumasi, for instance, continuity often becomes decisive. Cases like R v Gyngall and Attu v Attu guide Courts to prioritise schooling, friendships, and established support systems. Another instance is where a mature child has expressed consistent views, supported by clear reasons, this can shape the outcome. But as Edwards v Edwards reminds us that the Court must be sure the views are genuine, not coached.

 

We must also note that Courts are slow to disrupt a parent–child relationship without proof of harm. Section 5 of Act 560 requires clear evidence of significant abuse, neglect, or danger before the child can be removed from a parent’s care. Bare allegations will not suffice.

 

Misunderstood Territory: The Father’s Position

Many unmarried fathers go into panic mode thinking, “I have zero rights” but this is simply wrong. If you’re a father worried about custody, here’s what you need to know, Act 560 imposes equal responsibility on both parents. A father who has been present, supportive, and actively involved in his child’s life will not be treated as a mere visitor. However, Courts care about consistency. A father seeking regular access must show a pattern of reliable involvement, not simply express emotional attachment or heartfelt speeches in Court. For instance, where a father argues that superior resources entitle him to custody, the Courts return to Re McGrath and the broad definition of welfare. The decisive question is not who has more money, but where the child’s emotional stability, routine, attachment, and happiness is best preserved. Custody and access are separate issues: the primary caregiver provides daily care, but the other parent retains the right to meaningful, regular contact unless there is clear evidence of harm.

 

The Role of the Child’s Voice

Section 45(2)(c) of Act 560 requires the Court to consider a child’s independently expressed views. This echoes the reasoning in Edwards v Edwards (1955), where the Court held that although a child’s preference is never controlling, it receives substantial weight when accompanied by reasonable, mature explanations. The older the child, the more persuasive their views tend to be, provided those views are genuinely independent and not coached.

 

Revisiting Custody When Circumstances Change

Custody arrangements are never permanently sealed. In Tackie v Baroudi [1977] DLCA 1432, the Court confirmed that custody may be revisited when circumstances materially change. This is essential as children grow, parents relocate, financial realities shift, and emotional dynamics evolve.

 

The Broader Legal Framework: Best-Interest Analysis

Section 2 of Act 560 makes it explicit: in every matter concerning a child, the child’s best interest is the primary consideration. This mirrors Article 3(1) of the UN Convention on the Rights of the Child. Section 5 reinforces the child’s right to grow within a stable family unit unless significant harm is proven. The UN Committee on the Rights of the Child, in General Comment No. 14, describes the best-interest principle as both a substantive right and a procedural requirement, meaning the decision, the interpretation, and the reasoning process must all prioritise the child’s welfare.

 

Authorities such as Re F (An Infant) [1969] 2 All ER 766, Attu v Attu, and Young v Young [1993] 4 S.C.R. 3 all reinforce this. And as Re W (Minors) (Residence Order) [1992] 2 FCR 461 clarifies, a custody order does not terminate the other parent’s responsibilities, parenthood continues regardless of where the child lives. The other parent still has to show up, pay, and parent.

 

Final Thoughts

Co-parenting outside marriage in Ghana is entirely workable when both parents understand the legal framework they are operating within. Act 560, supported by decades of jurisprudence, makes one thing absolutely clear: the child’s welfare is paramount. Not parental pride. Not tradition. Not financial standing. The child.

 

Parents who document their involvement, communicate responsibly, remain flexible, and prioritise their child’s stability will always be better positioned, emotionally and legally. When the focus stays on the child’s wellbeing, co-parenting becomes not a battleground, but a workable, child-centred partnership built on clarity, responsibility, and respect.

 

In short, put your ego aside, collaborate like a grown-up (even when it’s hard), and remember: no one wins custody by being funnier, richer, or louder. You win by being the parent the child actually needs. 

 

Related Service: Family Law