Marriage is seen as one of the most sacred and transformational affairs in Indian society. But, when the two individuals fail to comply with the marriage obligations, staying separate stands as the only solution. However, the process of divorce in itself is very ugly, and when the two decide to part ways the children become victims of the suffering.
The battle for child custody after divorce in India makes the situation even more delicate, especially when the child is of minor age and is involved in the conflict. Securing the child’s future by deciding the best place for them to stay and grow up to a certain age becomes the most important concern to address, for which justice points are looked upon. They help to decide who passes the verdict about who is going to take the child custody after divorce in India.
In this article, we will learn about child custody in India and the other concerned elements associated with this so that you can file your case and secure a WIN condition.
Definition of Legal Custody & Child Custody in India This term is used for describing the responsibility of divorced parents to provide physical and emotional care to their kids. This also involves the authority to make the major decisions of the kid’s life before their own conscience develops.
The 1890 Guardians and Wards Act governs on the basis of guidelines and principles mentioned to determine the guardianship of a child. It clearly states that the charge of the minor child < 5 years of age should be in favor of a mother, unless and until there are any special circumstances.
The various types of custody are:-
Physical custody: Here, the kid is handed to the custodial parent and the other one is allowed to visit and interact with them at regular intervals.
Joint custody: In this situation, the kid lives with both parents on a rotational basis. The stay does vary from days to weeks or months as per the mutual agreements between them.
Sole custody: When the guardianship is handed to one parent as the court finds the other partner unstable, abusive, offensive, and not capable enough of raising a child.
Guardianship of minor children: This is one of the most common types of guardianship granted in India. In this, one parent is responsible for the care, maintenance, and education of the child, and the other one is allowed to visit them.
Partial custody: It also happens when one parent cares and controls the decision-making. To get this, the interested parent needs to provide that he/she has the potential to do so. Also, it is only given to kids under 18 years of age. The mutual agreement decides the time frame during which the kid will stay with them.
Third-party custody: When a third person is given the guardianship of the kid rather than the biological parents. Non-Parental custody is another term often used for this.
Majorly, the “best interest of the child” should be considered above all the factors while determining the right person between the two.
What are the Factors That Contribute to the Welfare of the Child? The primary thing that is taken into consideration, while allotting guardianship, is the welfare of the child. In legal terms, it is regarded as “the best interest of the child.”
Here are the factors that are taken into the frame during the process based on the best interest:-
Safe-keeping of the child
Ethical upbringing
Good education
Well-economic background of the custodial parent
The Child Custody Arrangements in India The custodial arrangement for securing the future of a kid is as follows;
Hindu Muslim Christian Parsi Laws Governing By the Hindu Minority and Guardianship Act of 1890 By the Personal Guardians and Wards Act of 1890 By Guardians and Wards Act 1890 and Indian Divorce Act 1869 By Guardians and Wards Act 1869 Rights of Father and Mother Father is considered a natural guardian Father is treated as a natural guardian of the kid No such kind of distinction No such sort of distinction The Best Interest of Child Considered Considered It is the fundamental principle to determine It is the fundamental criterion to determine Consent of the child Child has a say A child’s opinion is considered Child opinion is considered if they can understand the situation Child opinions are considered if they can understand the situation
Who Gets Custody of a Child After Divorce in India? Here are the legations say on the custody of a child after divorce;
If a child is less than 5 years of age, they should be handed over to the mother only.
Whereas, a boy over 5 years or an unmarried girl < 18 years should be with their father.
In case, the father expires, then only the custody is handed to the mother.
The child custody laws in India without divorce are automatically considered guardianship of an illegitimate child, which naturally goes with the mother.
If none of the parents is interested in taking up the charge, then the grandparents either from the paternal or maternal child can be considered for taking up the responsibility.
How Can a Father Get a Child Custody in India? In most cases, the decision of guardianship falls in the favor of a mother. But, still, fathers are also not deprived of their custodial rights, especially when the mother is not capable enough to raise the kid properly. In fact, with time, the court has also started treating mother and father equally eligible for custodial rights. Also, the mother being the best caregiver is not always true.
If a father wants to secure custodial rights, there are several conditions;
If the mother is mentally unstable.
When the kid is over 13 and wants to stay with their father.
If the father proves the financial incapability of a mother to properly support the child.
When the mother has an immoral character.
If the father proves the dark past of the mother, that will have a severe effect on the kid’s mental and physical health.
When the mother convicts herself, naturally the guardianship is given to the father.
However, it is very important to connect to the right person to get the most important advice and suggestions at the right time so that you won’t regret it later. Do communicate your concern with the specialized Divorce lawyers and receive the best piece of advice to proceed wisely in your case.
Hope, this will help you to pick the best for you!
FAQs
Ans:
Both parents hold equal rights to the child, even after the legal separation. However, in a situation where none of the parents wants to take up the responsibility, then, any of the responsible family members like grandparents, uncles, or any interested member can claim it under Guardian and Wards Act.
Ans: Yes, however, this puts a significant impact on custodial rights. Firstly, they have to prove their biological relationship with the kid. The court will also impose some duties on them to fulfill as a part of their custodial obliging.
Ans: The kid’s welfare is taken into consideration and according to that the final verdict will be given.
Ans: Yes, a father can certainly claim his guardianship. However, if neither of the parents wants to take up charge of the child then, the interested member like the grandfather or any other member can claim it.
Ans: Yes, a stepmother can also seek to gain the guardianship of a kid.
Ans: If a parent is not satisfied with the court’s verdict and wants to take up the charge, they can go to claim for it.
Ans: Mostly, the decisions are in favor of the mother, hence, it becomes really struggling for a father to prove him. He has to make the court understand that the welfare of the child is with him.
Ans: It means the financial aid is given to the kid through the sole custody holder to assist the child in their upbringing.
Ans: Yes, a father can seek to get the legal verdict for guardianship. Usually, it is not allotted to the father, especially when the kid is less than 5 years of age as per the child custody age limit aspects. A father can have it in two ways.
If both parents agree, document the stuff, and present it before the court by providing that it is going to be in favor of the child. In this way, both parents can have child custody after divorce in India.
However, when divorced parents fail to conclude a mutual agreement, the court decides with whom the child will spend time. As <3% of cases reach the court, hence, keep in mind that you are in a losing game already.
Ans: Both parents hold equal rights to the child, even after divorce.
Ans: According to the law, a woman can never be denied her right and duties she shares with the minor kid, just because she has entered into a new relationship.
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