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Child Custody - Read Before You Leap

Custody of a child shall be handed over to such a person who fosters him with care, love and affection. -Honourable Justice Vinod Prasad

You would have often heard the word Custody, but do you exactly know the meaning of Custody?

If not, then read the article and have a better understanding about custody and the roles of parents during custody of their child/ children.

In case a marriage breaks down, and the parents of a child are separated, then it has serious consequences on the upbringing of the child. The child's custody is given to one of the parents and the welfare of the child is considered most important during the assignment of custody.

Child Custody refers to the rights and responsibilities between parents for taking care of their child/ children. As, understood commonly, custody means guardianship, i.e., upbringing, or parenting of a child is the process of supporting the holistic development of a child.

So, the present blog sheds light on different laws applicable to the custody of children of different religions. Further, the blog deals with the critical issues which parents face in case of custody rights. Also, this article explores many answers which parents look for before appealing for custody in courts.

Thus, this article will help you to understand the child/ children custody laws that are used in family court to describe the parenting responsibilities.

If a marriage breaks down and ends up in separation of a couple, the person who suffers the most is the child/ children born out of the marriage. The Indian Law, while keeping in mind the parent's right to the child custody, holds the welfare of the child as the most important factor of consideration when deciding upon who gets the custody of a minor child.

The issue of Child Custody crops up during divorce proceedings, or judicial separation. It refers to the process of controlling, caring, and maintenance of the child less than eighteen years of age by the custodial parent (the rights have been granted by court) under set parameters such as financial security, understanding with child, lifestyle, etc. The prime rights of nurturing the child with respect to education, development, medical, emotional, physical, etc., lies with the custodial parent while the non-custodial parent only holds the right to access/ visit and meet the child.

In innumerable cases, both the parents are provided with access to the child, but the physical custody of the child is usually granted to one parent. The Family Courts while deciding on this need to keep the best interests of the child as of paramount importance.

What are the factors that constitute Welfare of a child?

Welfare of the child, broadly, includes the following factors:
  • safe-keeping of the child;
  • ethical upbringing of the child;
  • good education to be imparted; and
  • economic well-being of the guardian.
If either of these factors are not met by the parent, then he or she loses the custody of the child.

Who can claim custody of a child?

The Honourable Supreme Court and other Courts in India have repeatedly mentioned that for the custody of a minor, the only consideration is the welfare of the minor, irrespective of the claims of the parties to the custody of children.

The custody of a child can be claimed either by mother, or the father. In any of the cases where the two of the parents are not in the picture due to operation of some other laws, or deceased then in such a situation, the maternal, or the paternal grandparents, or any other relatives can claim custody of the child strictly out of compassion towards the child. In many cases, the court appoints the third person as the guardian of the child.

How can a mother/father lose custody of her/his child?

According to Section 39 of the Guardians and Wards Act, 1890, if a mother/father fails to provide proper guidance, care, or support, and is determined to be unfit, drug abuser, or who emotionally and mentally abuses the child, will eventually lose custody of their child. Also, a parent who violates court orders relating to the divorce, or who engages in criminal activity will eventually lose the custody.

Legislations governing Child Custody under different laws in India

The Guardians and Wards Act, 1890 is a universal law, pertaining to the regulation and issues involving child custody and guardianship in India, regardless of the religion the child belongs to.

However, India being a secular nation practices different religion namely Hindu, Christian, Islam, and Parsi. Hence, every religion has a personal law set for child custody which determines the process through which parents can seek the custody of their child.
  1. Custody under Hindu Law

    The laws associated under Hindu Law namely, Section 26 of Hindu Marriage Act 1955, Section 38 of Special Marriage Act 1954 and Hindu Minority and Guardianship Act 1956 describe the reforms and regulations set for seeking child custody.
    1. Section 26 of Hindu Marriage Act 1955
      This Section deals with the maintenance, education and caring of a child and validates the child's custody if both the parents follow Hindu religion.
    2. Section 38 of Special Marriage Act 1954
      The Section validates the child's custody if both the parents belong to different religions or have undertaken a court marriage.

      Under Section 26 and Section 38, the court can any point of time pass interim orders, judgments, amendments, etc., with respect to the child's maintenance and can dispose of the pending decree within 60 days from the date of service of notice.
    3. Hindu Minority and Guardianship Act 1956
      Under this Act, only biological parents (not step parents) are given the right to seek the custody of their minor child only if he/she is a Hindu.
  2. Custody under Muslim Law

    As per the Muslim Law, only the mother or any other females (maternal grandmother, maternal great grandmother, maternal aunt and great aunt, full sister, uterine sister, consanguine sister, paternal aunt) holds the ultimate right to seek her child/children's custody under the Right of Hizanat until she is not convicted, or found guilty of any misconduct.

    The custody of a child under Muslim law is with the mother or other female members until the child has attained the age of seven years for a boy, and until the child has attained the age of puberty/ majority for a girl.

    The custody of a child goes to father only in two conditions:
    1. On the completion of the age by child upto which mother or other females are entitled to custody.
    2. In the absence of a mother, or other females who have the right to hizanat of minor children.
  3. Custody under Christian Law

    The child�s custody for parents belonging to Christian religion need to follow the reforms and laws set under Section 41 of the Divorce Act 1869. In addition to this, Section 42 and Section 43 holds the right to decide upon the child�s custody once the judgment with respect to separation or divorce has been passed.
  4. Custody under Parsi Law

    The custody of a child under Parsi law is dealt with the provisions of the Guardians and Wards Act, 1890. It's main aim is the welfare of the child and can put anything at stake to make sure that the welfare of the child is confirmed.

Who gets child custody in India?

Under Hindu law and Secular law, the custody of the child under the age of five is usually awarded to the mother. In most of the cases fathers get custody of the older boys and mother of the older girls.

Moreover, a child's interest is the main criteria and the choice of the child above the age of nine is considered by the court.

At what age can a child decide his/ her custody in India?

A child can decide custody on its own only after attaining a particular age i.e., nine years as per the Guardians and Wards Act 1890 (GAWA). Once a child achieves the age of nine years in India, his/her preference for custody is considered.

How to know the type of custody granted?

Primarily, a court of competent jurisdiction in India orders the custody of a child in the following
four forms:

Physical Custody

Physical custody when awarded to a parent implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during his formative years.

Joint Custody

Joint custody of a child does not mean that the parents will live together because of the child. It simply means that both the parents will take turns keeping the child in their custody. The rotation of a child between the parent's custody may vary from certain days, or a week, or even to a month. This benefits the child, as the affection of both the parents is not lost, and the parents also get to be a part of their child's life in those young years. In such a set-up, both the parents have equal rights on their child.

Sole Legal Custody

In this, the parent who granted the legal custody takes every decision for the child. From where the child will study and what doctor will the child be treated, etc. In most instances, courts grant legal custody to both the parents together but if the divorce is messy and the other parent is abusive, unstable, violent, or incapable in nature, the court grants the legal custody of the child to one parent.

Now, the question arises, Whether non-custodial parents have the right to know about their child?

If a non-custodial parent has joint legal custody, only then he/she has the right to know information about his/her child. This would include school, medical, and general information, and if the custodial parent is not providing information, and is being blocked from getting it from other sources, he/she should consult with a lawyer and file a motion in Court regarding these issues.

Third Party Custody

In third party custody, none of the biological parents have any right on the child. Instead, the child custody is granted to the third person by the court.

In case, Keshav R. Thakur v. Suchhibai, the father of the child had died when he was six years old. The mother of the child appealed before the Court for child's custody. The child had been living for ten years with his grandparents. Therefore, it was held that custody cannot be granted to the mother at this stage because the child had been living for a long time with the grandparents. The Court granted only the visitation rights to the mother.

When the custody of a child goes to Third Party Custody?

According to the Section 12 of the Guardians and Wards Act, 1890, if the parents are not willing to take the child custody, or if the court thinks that for the welfare of the child it would be better if the child is not kept under the guidance of the parents then in such cases, a third person may be allotted the custody (temporary) of a Hindu child. In this case usually, the grandparents (paternal, or maternal) will be preferred to get the custody of that Hindu child if they are interested.

If neither the parents nor any of the close relatives of the child are initiating to take custody of the child then the court by itself shall find an appropriate person who could take the custody of the child.

Some basic questions which are faced by parents before appealing for custody of their child/ children are mentioned below:
Who gets custody of a minor child after divorce?
According to the Guardians and Wards Act 1890 (GAWA), the custody in these cases depends on the interest of the child (if a child is of nine year, or more) with whom he/ she wants to stay. And, if the child is below nine years then the custody will be granted by the court by seeing all the welfare factors mentioned in Guardians and Wards Act, 1890, or the Hindu Minority and Guardianship Act, 1956, which are necessary for the child to rise up in a better way.

Also, as per Hindu Minority and Guardianship Act, 1956, the Hindu child below the age of five years shall be kept under the custody of the mother as till this age only the mother can give proper emotional, moral, as well as physical support to the child.

Thus, the custody will be awarded to a parent decided by the court/ child's interest, but the other parent gets visitation rights, the conditions of which are determined by the court.

Who gets the custody of a minor in case the mother has a weaker financial condition/ no job as compared to the father but the father has remarried, and has kids with a second marriage?

In such cases, the mother cannot be discarded as the guardian only because she earns less than the father, or has no job. Well, in such a case the father of the child has to provide the child's maintenance as it is well established principle of law that a step- mother has a primary obligation of affection and attention towards her own children and the father would remain out for work all day, and thus, the mother is proved to be a better guardian for the minor child.

In case, Jasbir Kaur Sehgal v. The District Judge Dehradun & Ors, the Supreme Court held that the wife is aggrieved only because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance.

Who gets the child's custody if the parents are unmarried?

Child custody is often complicated, but when the parents are unmarried, establishing parental rights can make custody, and visitation. When two people have a child out of wedlock, custody of the child is immediately awarded to the mother.

Whom the custody will go if a child is illegitimate?

According to Section 6 of the Hindu Minority and Guardianship Act, if the child is illegitimate then the custody shall be with the mother itself. In case, ABC v. State (NCT of Delhi), the Apex Court granted the right of an unmarried mother to be appointed as the sole guardian without informing the father.

When the custody of a child is granted to the father?

In India, it is believed that no one can be a better caretaker than a mother. Unfortunately, it is not true all the time. The child custody can be granted to the father if the child attains the age of nine and wishes to stay with the father. Also, if the mother is not mentally stable, and is of an immoral character, and is a convict, then the custody of the child shall thereafter go directly to the father.

Also, according to the Section 6 of the Hindu Minority and Guardianship Act, 1956, father is the natural guardian. So, the custody of a child/ children shall be given to the father and only after his death, the custody shall be given to the mother.

Can a father fight for child custody if he is not on the birth certificate?

Whether or not a father's name is listed on a birth certificate can have significant impacts on their custody rights. In most cases, if the person's name is listed as the child's father on their birth certificate, courts will automatically conclude that they are the child's legal father. They will then be granted various custody rights as the legal father of the child.

According to the Section 12 of the Births and Deaths Registration Act, if the father's name is not listed on the child�s birth certificate, he may often not be granted any custody rights over the child, whether partial or full custody. If the father wishes to gain legal rights, he must need to apply for parental responsibility, and if they are the biological father of the child, they may need to establish paternity to prove to the court that he is the biological father.

Can a stay-at-home father get custody?

When there is a stay-at-home parent, this person will often be considered the primary caregiver. There are a growing number of situations where the father stays home with the kids and the mother works. In these cases, if both spouses are competent, loving parents, then the father should be awarded child custody.

Custody battles are already traumatic and exhausting experiences for a child to go through, so the first priority of the parents should be the desire, and happiness of their child/ children.

Judges must decide custody based on the best interests of the child. The best interests of the child law requires courts to focus on the child's needs and not the parent's needs. The law requires courts to give custody to the parent who can meet the child's needs best.

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