CHILD CUSTODY

Contents

CHILD CUSTODY MEANING :

What is custody ? Custody is the right to look after and care a person and same is applied in case of custody of child meaning. Child custody means you have the legal right to make big decisions about how to care for and raise your child. It is not important with whom your child lives or for how much time. or you have sole physical custody or not.

For example, even if you have physical custody and have right to make decisions about your child, your child can spend a lot of time with you and your spouse. Or, your child might be with you but you and your spouse have a joint custody and take equal decision for child. You will be called as legal custodian when you get right of child custody from the court by filing petition for child custody through your child custody lawyer.

In Physical custody court after hearing the both the parties either give the custody to the one party and visiting rights to other. Sometimes legal custody could mean that court has given the custody of the child to third person in case of death of the both parents. It is the difference between physical custody and legal custody. Most of the time without differentiating in child custody laws under different religion, people opt to file petition under The Guardians and Wards Act, 1890 for deciding issues involving child custody regardless child’s religion.

Legal custodian have the right to make important decisions under law of child custody in India:

Giving Education.
Medical facility
Religion

THE FOLLOWING ARE THE DIFFERENT TYPES OF CHILD CUSTODY :

FULL CUSTODY

After the filing of case for custody of child, court keeping in mind all circumstances passes the order giving custody of child to one of the party.

INTERIM CUSTODY

If the cases like Divorce, Domestic violence, 498A are pending, till the case is pending, the court grants temporary custody of child to the one of the party after considering all circumstances.

PART CUSTODY

In some situations after considering best and suitable measure for welfare of child, Court grants part custody to both the parents like child will reside 6 months with mother and 6 months with father or child will reside with father in summer and winter vacation.

RIGHT OF VISIT

Even if the custody was given to one party, other party could get right to visit and see the children. In such type of cases, court gives the right to visit on a particular day and for particular time considering all factual position. In case of worst situations court can cancel such orders for some time considering welfare of the child.

DIVORCE AND CHILD CUSTODY :

Children are the worst affected in proceedings of divorce and family breakdowns. Often, parents use children as pawns to strike their own bargains, without considering the emotional, social and mental upheavals that the children may face. No one understands that gaining custody of a child is not victory for that child. The filed cases and factual situations place a duty upon the court to uphold the child’s welfare in each and every case. Courts always ensure that the child’s future is safe and protected, regardless of changing familial circumstances.

Source- TEDx Talk

CHILD CUSTODY WITHOUT DIVORCE :

It is possible to get child custody without divorce. If your spouse wants divorce but you dont want, in the said situation if you are separating from each other, you can either file Petition for judicial separation and into that yo can file Petition for child custody for child custody while married. However you can also file independent Petition for child custody in family court with help of top child custody lawyers.

WHO GETS CHILD CUSTODY IN DIVORCE :

In most of the cases if parents are mutually agree or parents are not stubborn, fighting continuously, then Family court gives the custody of child to both the parents. If the parents are not understanding or parents are stubborn, fighting continuously, then Family court gives the custody of child to one of the parents. It is always to be kept in mind child welfare only, during divorce child custody.

Welfare and interest of the child is prime importance as per every court.

DIVORCE WITH CHILD CUSTODY :

Divorce with child custody is very rare thing happen due child custody mediation conducted during trial. It mostly happen in case of mutual divorce where parties mutually agree to terminate the marriage. It is as usual if the spouse id mutually agree to terminate the marriage they will probably find way to resolve the issue of child custody after divorce.

CHILD CUSTODY LAW INDIA :

the universal law regarding custody of child is The Guardians and Wards Act, 1890 for deciding issues involving child custody regardless child’s religion.

However, child custody laws pertaining to different religions India as follows.

Hindu law –

Under Hindu law mother normally gets custody of the minor child, under the age of 5. Mosty father gets custody of older male child and mothers of older male child, but it is not a strict rule and decided on the basis of child’s interests and welfare. Mostly the wish and desire of child above the age of 9 is considered by the Family court by conducting child mediation.

Custody under Muslim Law

Only mother has the right to get child custody as per Right of Hizanat until she founds guilty of any misconduct. Custody of child under Muslim law is with the wife until child completes the age of seven years in case of male child and in case of female child until she attains the age of puberty. Custody of child with the husband till the male child attains the age of seven years and female child until she attains the age of puberty as because the father is considered to be the natural guardian.

As per the Muslim Law, only the mother holds the primary right to seek custody under the Right of Hizanat as long as she is found guilty of any misconduct.

References and more to read :

FILING FOR TEMPORARY CUSTODY :

Filing for temporary custody can be done when you found that spouse is out of station or busy in work and due to same he or she could not take proper care for the relevant time. Suppose if husband met with accident or not well and in the said situation wife will be fit and best person to care and keep safe the child and in such situation, filing for temporary custody will be good option

In Maharashtra in summer vacation if husband wants to go for picnic outing with child he can do filing for temporary custody. or if husband have Ganesh festival at home and wants his child to be at his home for celebration during Ganesh Fetival, he could apply for temporary custody of child. Mostly application for temporary custody of child allowed by the court as it is limited time custody and it could not harm child, on the contrary it gives the comfort and fun to child and spouse.

FATHERS RIGHTS TO CHILD CUSTODY :

In India child custody rights for fathers are very difficult. Even if Indian Courts do not discriminate between father and mother, considering many aspect like child’s age and sex dominate on decision of the court. In India mother has greatest place always and considered important than anything else since the birth, therefore most of the time court thinks that mother can raise the child and see the welfare of the child more efficiently than father. That makes difficult child custody for father.

Due to said situation it makes difficult for fathers to get custody of child and have to fight more and even more when mother is also fighting for custody. Temporary custody is only thing father would get easily but for permanent custody husband needs to prove immoral acts or misconduct by the wife with child. When child reaches in the age of 9 to 12 there desire and will is considered by the court which creates win win situations for husbands for getting custody of child. Shreeyansh legal provides best child custody lawyer for fathers in Mumbai, Thane and Navi Mumbai.

HOW TO FILE A PETITION FOR CHILD CUSTODY?

Following are the steps to be followed in custody proceedings –

Contact child custody attorney.
Meet and give the details and evidence regarding grounds for getting the custody.
child custody lawyers will draft of child custody petition .
On approval of petition for child custody, lawyer will file the Petition in court.

CHILD CUSTODY AND DOMESTIC VIOLENCE :

Under Domestic violence act mother can get and retain custody of the child and could also get maintenance for the child. Under Domestic Violence Act gets very less scope for feasible orders but he can certainly get visitation rights under section 21 of the Domestic Violence Act. In situations of Divorce, Domestic Violence, 498A cases, Separation, Desertion child becomes a victim of situation and child will be easily get ignored by the parents due to their disputes.

After dispute Child becomes a toy for the war. Due to the sudden change of peaceful environment at home and in addition to that most of the time child becomes a victim of the frustration of personal dispute of parents, it affects physiological situation child and creates an impact on the mind of the child.

CONCLUSION :

Courts in India have recognized the welfare principle, but many aspects of the legal and judicial framework remain wanting. Courts tend to grant custody of a child to either one parent or another, presuming that it is for the welfare of the child. Joint custody arrangements, where both parents have custody of the child, are rarely considered.

Problems in court decisions are compounded by inconsistencies in the law. The currently enforced law does not treat the mother on an equal footing with the father as the natural guardian of her child. Further, custody matters are most fiercely fought in court, because there is no agreement or understanding about what constitutes the welfare of the child. In some cases spouse found taking advantages of crpc 97 child custody section but due to High Court order now it is also stopped.

As a result, it is impossible to ensure that the interests of the child are actually protected. The legal framework also contains no guidelines about the manner and process by which custody issues should be handled.

However best practice is to give child support and visitation to fulfill purpose of welfare of child.

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Child Custody- FAQ

What is the age limit for child custody in India?

Its 5 years as per Indian Laws. Upto 5 years children needs more attention which only mother could give them. After 5 years welfare of the child and upbringing will be considered by the court.

Can a mother get full custody without a job?

Yes, Welfare of the Child and his upbringing have prime importance. Even if you dont have job, your husband is liable to provide maintenance to you and your child as per law, so the Job factor dont interfere in it.

How can a mother win a child custody case?

Only way to win a child custody case is to show and prove good conduct of yours and prove to the court how there will be possible fulfillment of welfare of the child if custody is given to you. Your willingness and positive approach towards your child right to get equal love from his father too, wins the heart of any court.

Can you lose custody of your child due to adultery?

Yes, because it shows your immoral conduct to the court and opposite lawyer gets the easy platform to prove that how you adulterous nature could affect welfare of child.

What do judges look for in child custody cases?

Judges decision about custody is based on best interests of the child. For “welfare off the child” law it requires courts to aspects like child's needs Courts gives custody to the parent who can fulfill child's needs at best. Second is parents conduct and habits.