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Child Custody

Child custody is a term that defines the guardianship and also a relationship of a child with his/her parents and guardian and it also sees how that person care for that child.
Child custody is a legal custody that is given either to parents or guardians of that child, it all depends on the child's decision with whom he/she wants to live. After this, the custody of the child is given to that person.

Right on a minor child after Divorce?

Both parents have equal rights on the child after Divorce. But deciding the right on a minor is a question, but only the court has a right to decide this. But according to section 6(a) of the Hindu Minority and Guardianship Act, 1956 mothers will get custody because considering the welfare of the child and other little things all are seen by the mother.

Types of child custody

  1. Legal custody

    It involves the division of rights between the parents to make important life decisions relating to their minor children. These decisions may include a choice of a child's school, medical treatments, treatment, counselling.

    It may be a case in which both parents share decision-making rights. In this case, one parent has the rights to make important decisions of the child without regard to the wishes of the other parent.
  2. Physical custody

    Physical custody is defined as custody in which daily routine or any issues regarding anything dealt with that guardian with whom the child is living.

    The different forms of physical custody include:

    1. Sole Custody:

      Sole custody
      Sole custody is also known as single-parent custody in in which a child is only allowed to live with one parent who is the only caretaker of that child but the other parent may have visitation right with his/her child.
    2. Joint Physical custody

      Shared parenting
      Joint physical custody is also known as shared parenting custody in which both parents are allowed to share custody of the child. They both are equally responsible to take care of the child. The Child also share an equal amount of love and time with both the parents.
    3. Bird's nest custody:

      In this type of custody parents meet the child alternative to the residence where the child is living.
    4. Split custody:

      It is a custody of more than one child to both the parents, in which one parent has custody over one child and the other parent has custody for other children.
    5. Alternating custody:

      In this, a child is allowed to live with one parent for sometime and for the rest of the time the child lives with the other parent.
    6. Third-party custody:

      Third-party custody is defined as custody in which both the parents are not given the custody of the child and the custody of the child is given to the third person.
  3. Joint Custody

    Joint custody is defined as custody in which it is not meant that both the parents might not live together but they stay together just for the child and take care of the child.

Child custody in different laws

  1. Custody under Hindu Law:
    The custody under Hindu Law is Section 26 of Hindu Marriage Act 1955, Section 38 of special Marriage Act 1954 and Hindu Minority and Guardianship Act 1956.

    Discussion of these Acts:
    • Section 26 of Hindu Marriage Act 1955

      In section 26 of the Hindu Marriage Act 1955, deals with the maintenance, caring and education only when both the parents are following Hindu Marriage Act.
    • Section 38 of Special Marriage Act 1954

      In section 38 of the Special Marriage Act 1955, it deals with the custody of children when both the parents belong to different religions or have undertaken a court marriage.
    • Hindu Minority and Guardianship Act 1956
      In Hindu Minority and Guardianship Act 1956, only deals with the biological parents who can seek custody of the minor child but the parent who needs custody of the minor child must be Hindu.
  2. Custody under Muslim Law:

    According to the Muslim Law, child custody is with there mother till the time the child does not reach the age of seven. After the age of seven fathers have the right over the child and he is considered as the Natural guardian of the child.
  3. Custody under Christian Law:
    Custody under Christian Law states that the separation of parents is dealt with under Section 41 of the Divorce Act, 1869. For the custody of a child, the parents need to prove themselves in front of the court to get the custody of the child, if any of the parents fail to prove themselves then the court denies their custody.
  4. Custody under Parsi Law:

    The custody Under Parsi Law is decided under the Guardians and Wards Act, 1890. This Act aims for the improvement of the child.

Some Famous Cases Of Child Custody

  1. Roxann Sharma V/S Arun Sharma
    Citation: 2015 (2) Apex Court Judgment (SC) 18; AIR 2015 SC 2232
  2. Gaytri Bajaj V/S Jiten Bhalla
    Citation: AIR 2013 SC (Civil) 77
  3. Ruchi Majoo V/S Sanjeev Majoo
    Citation: AIR 2011 SC 1952; (2011) 6 SCC 479
  4. Dr. V. Ravi Chandran V/S Union of India and others
    Citation: 2010 (1) SCC 174 (SC)
After reading and analyzing the custody of a child remains one of the most sensitive issues caused due to separation of the parents. Deciding in giving custody to mother or father is difficult for the court because both the parents are equal in one way or the other as they can take care of the child hygiene or other things like schooling, outdoor or indoor activities. At a minor age mother's are moreover to take custody of children and can take more care of the childlike caring for their every little thing. But it is not as important whoever takes the custody but at the end, the well-being of the child is more important.


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