The right of custody of a kid is the right granted by the court to a parent to take care of the child in case if the child is less than 18 years of age. The parent who has the custodial right is responsible for the child's financial stability, upkeep in terms of suitable lifestyle, healthcare, emotional, physical, and medical growth. The sole right for the other parent to access and meet the child is available. When discussing custody, the family courts base their judgement on the best interests of the children. The custody law is strongly connected with the custody law. Guarantee refers to a group of rights and powers that an adult possesses in respect of a minor's person and possessions, whereas custody is a narrower notion for childcare, day-to-day care and control. In Indian family law, whether religious or secular, the term 'custody' is not defined.
FORMS OF CHILD CUSTODY
Child physical custody
If a physical custody order is issued to a parent, it implies that the kid is under the parent's protection and that the other parent is authorized to meet the child from time to time. This kind of custody is the most common way to ensure that the child receives all the advantages of the family and the finest possible education. The children's surroundings are stimulating and satisfying in order not to deprive their parents of their affections throughout their formative years.
Custody rights are conferred to both of the parents for joint custody, which allows them to retain the child in turn. In contrast to the widespread notion, joint custody does not entail, even after court confirms its divorce, that the separated couple have yet to share the same roof. In the custody fight, shared custody is, mainly for two reasons, one of the finest alternatives. The reality that no parent is deprived first and foremost. Regardless of the word, rights of custody cannot be equated with rights of access. The granting of the rights of custody ensures that the two parents have an important role in the development of the life of the child. The second advantage of a shared custody is that both parents have the same affection.
Custody by a Third Party
As the term implies, neither biological parent has the custody right. The court is thus of the opinion that both parents cannot raise a child and would not benefit the child if any of them had the rights of the child. A third person that has a connection with parents in any manner is entitled to be the child's guardian.
In the event of sole custody, one biological parent shall have all of the custody rights of the child. Because of prior abusive behavior, the other parent is held away entirely and is not entitled to a get the custody of the child, or is not able to benefit the child in some respects.
PROCEDURE FOR OBTAINING A CHILD CUSTODY:-
A petition for custody of children or a statement about the appointment by the wife seeking custody of the child of a minor of the natural or legal guardian begins when the petition is filed. Notably in situations of child custody the custody/care of a minor kid is sought by the non-custodial parent. This petition normally takes longer and the non-custodial parent may also submit an application for temporary custody, provisional custody, and visitation rights.
Visitation rights means that the minor kid meets regularly with the non-custodial parent. Visitation privileges vary from 1-4 meetings a month over the course of the whole period.
Interim custody typically means that the non-custodian parent with undertaking to return to custody by giving it over to the custodial parent, after having fulfilled the set time, shall be custodian for an overnight or lengthy hour of custody.
A parent custodial must respond to the request, followed by proof from both parents. The final arguments and subsequent decision will follow once evidence has been concluded by both the parents and their respective witnesses, if any.
As mentioned in some situations and requirements above, a written petition may be presented before the Supreme Court pursuant to Article 32 of the Constitution of India or a written petition may be submitted under Article 226. Such a situation would involve, but not limited to, unlawfully removing the children from other parents' custody or illegal retention by the other parent or custody by the foreign court but taking the child away from the jurisdiction of that foreign court or the country by father or mother, as appropriate. This situation would be exceptional. Such petition should be filed in the nature of Habeas Corpus's Writ for the Custody of Child. It is requested to determine the matter expeditiously. This is not a complete request for child custody, but it has limited competence. However, extra ordinary powers and competence are given to resolve the matter by the Supreme or High Courts. It is of paramount significance to submit such a petition. In situations of child custody, parties, relevant counsel and the judge are emotionally taxable. The majority is often 18 years old and sometimes 21 years old. Currently, courts regularly use experts like counsellors, psychologists or other specialists who deal with custody matters. It is quite significant to note that all decisions that achieve the ultimate results are binding on parties. However, child custody proceedings are never definitive decisions or judgments. The rule of law is a departure. For additional explanation, one parent was given the custody of the child by judgement or consent.
CUSTODY AND MAINTAINANCE RIGHTS OF A CHILD BORN OUT OF LIVE-IN RELATIONSHIPS:
We may infer that only through time have the notion and legal status of live-in relations in India developed and that different decisions of the Honorable Supreme Court and Apex courts play the most important role. However, the subject is improper, because the provisions of a live-in in India are not subject to distinct laws. The notion of a live-in relation is a moral topic in India, although according to the legislation it is not unlawful. The Honorable Supreme Court said that the right to life for two important individuals living together cannot thus be regarded as unlawful. The Court classified live-in relations as 'related to the nature of marriage,' under its Protection of Women from Domestic Violence Act of 2005, to safeguard women in living-in and children who are born out of living-in relationships. The personal marriage rules are applicable also to children born out of a live-in relationship who have the rights to maintain children who are born from ordinary weddings. It differs across individual laws. Similarly, under Muslim rule a father is not responsible for keeping a kid that is born through marriage but the father must maintain such a child under Hindu law. Section 125 of the Code of Criminal Procedure, 1973, also applies to children who are unable to claim support under personal legislation, because it provides both the wife, the female partner and the children with a legal entitlement to maintenance.
WHEN DETERMINING WHICH PARENT SHOULD BE GRANTED LEGAL CUSTODY, THE COURTS MAY CONSIDER MANY DIFFERENT ASPECTS, INCLUDING:
- The parent's mental, physical, and emotional capacity to make legal choices on another person's behalf.
- The child's and parent's relationship history
- Is there a history of abuse, neglect, or other violations?
- The agreement reached between the parents on physical custody distribution
- Wishes of the minor kid, if he is capable of forming his own judgement.
- The financial situation of both parents.
FATHER GETS THE CUSTODY IN THE FOLLOWING SCENARIOS: -
In most of the cases where the child is a minor, the mother of the child gets the legal custody of the child and the father has to provide maintenance to the mother for the child. Fathers can get the custody of the child in the following senarios:
- The dad can be custodians if the mother is ready to give up the child's custody.
- The father is the next person to acquire child custody if the mother is not mentally stable.
- The Court shall give the child to the father if the youngster is 13 or older and has an expressed desire to remain with the father.
- In the event where the mom is immoral and can also harm the child, the dad gets the custody.
- Where the father can demonstrate a mother's financial incapacity that will, in future, influence the child's education and establish his financial ability to look after the child well.
- If the father can demonstrate that the mother's history is dark and the child remains with the mother, it will be disastrous for the child's education or damage his/her mental and physical progress.
- The custody of the kid shall belong to the father later on if the mother is a prisoner herself.
In India, child custody is determined by personal laws and the Guardians and Wards Act of 1890. The most important thing is to provide a child custody in order to pursue welfare, and then other personal law norms and rituals can be put aside if necessary. Preferences are offered to the parents and the child, but the final decision on child custody is made by the court. The Court classified live-in relations as 'related to the nature of marriage,' under its Protection of Women from Domestic Violence Act of 2005, to safeguard women in living-in and children who are born out of living-in relationships.