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Custody of a child is one of the most crucial aspects of the settlement offered by a Family Court in India. In simple legal terms, Custody means the rights of guardianship of a minor child provided to one or both of the natural parents or to one parent over the other parent after a divorce or a judicial settlement has been awarded to the parties. The other parent may or may not get permission to have physical or emotional contact with the child, as per the discretion and permission of the court.
Consult: Top Lawyers to help you win Custody
The term Joint Custody has not been expressly stated in the personal laws as well as The Guardians and Wards Act, 1890(1); yet Indian Courts have been paramount in inculcating this term for the growth and development of a child. A Joint Custody means that parents have subjective control over the terms and conditions of the agreement they share in the guidance of the court. Each parent is awarded custody of the child for a specific time period, i.e days or months per year, they have a co-operated responsibility in regard to the financial, health and educational forums of a child’s life. Both parents are awarded visitation time by the court while the child is in the custody of either one of them. However, Joint Custody can be of 3 types:
This arrangement largely depends on the facts and circumstances of each case and the discretion of the courts in making an arrangement when the parties fail to reach a common ground and schedule.
Top Read: Child Custody Laws in India
The Guardians and Wards Act, 1980 as well as the personal laws relating to Guardianship, The Hindu Minority and Guardianship Act 1956(2), dealing with the custody of a child though formulate different logical grounds for awarding the custody of child, have incorporated in them that the “welfare of the child” should be the most important grounds and it should be a primary factor in deciding the custody as per Section 25 of the Guardians and wards Act, 1890; section 13 of the Hindu Minority and Guardianship Act 1956. Hence the concept of Joint Custody came into effect.
Parents can apply for joint custody shortly after filing for a mutual divorce case, or in cases of annulments, domestic violence, judicial separation, terms of joint custody can be deliberated by the court depending upon the facts and circumstances of each case. In cases where parents want to amicably file for joint custody they can do so by mediating reasonable terms and conditions consented upon by each party relating to the financial, educational, health and other aspects relating to the overall development of the child. The court provides for forms which can be filed with regard to the joint custody of the child.
The landmark case of ‘K.M.Vinaya v. B. Srinivas', laid the foundation for the Law Commission Report No. 257 relating to the reforms integrated in the Guardianship and Wards Act, 1890.
The case was filed by a mother aggrieved by the judgement of the Family Court, Additional District Judge II. Both the parties contended that they rightfully deserve custody of their 12 yr. old minor boy, who was currently residing with his mother.
The respondent had claimed in his arguments as well as cross-examinations that the appellant had left their house when she was 5 months pregnant, and had repeatedly kept the child away from having an emotional as well as physical relationships with him. It was further contended that the respondent had over the years made innumerable attempts to visit his child and develop a bond with him, which was subsequently denied by the appellant on several occasions. It was claimed that the appellant was insufficient in taking proper care of the child and maintaining his medical health due to her odd working hours.
In response to the said contentions, the appellant furnished valid evidence of her being a competent guardian, providing for effective medical prove and growth report of her child of entire 12 years. She contended that she left her husband due to his habit of taking debt and financial stress. He never took any initiative in lending constructive support during the initial growth years of the child.
Suggested Read: Child Custody for Fathers
The appeal was taken into consideration by the court rejecting the judgement of the family court who had awarded custody solely to the father. It was seen that the mother had taken all reasonable care which was necessary for the overall development of her child in all aspects of life. However, it was all put into consideration that the respondent wants to be a part of the child’s constructive growth out of love and affection. The court keeping into consideration that the “welfare of the child should be given paramount importance” awarded a joint custody to both parents, since both of them were financially capable of taking utmost care of the child, all expenses were to be jointly shared by them, and the child was to stay in the custody of each parent for 6 months, in the entire year.
The Judgement of the Karnataka High Court partook the importance of a shared role of both parents in the upbringing of a child, it focused on the opinion that a child should be given the love, affection and guidance of a father as well as a mother until he reaches an age of majority.
Custody of a child is one of the most vulnerable aspects of imparting fair and sound justice and keeping into primary consideration the mental growth of a child during his initial growing ages. Though the acts relating to the child custody and guardianship do not expressly talk about the concept of joint custody, the court and subsequently the law commission has validated upon the need of introducing reforms into viewing the idea of joint custody to be the basis of any custodial battles. It can be put forward that a joint custody provides for:
In the West, this trend has arisen largely in response to changing familial roles (male caretakers taking on more child-rearing responsibilities) as well as psychological studies revealing that the involvement of both parents in child-rearing is preferable to sole custody arrangements. Studies indicate that children generally fare better when parents share custody, and some jurisdictions in some countries have a legally prescribed presumption of joint custody.
Further Read: Mutual Consent - The Quickest Way To Get Divorce
Shared Custody is a particular type of custody that allows each parent to have a frequent and equal amount of continuing contact with the child. It means that each parent share a fifty percent right over the custody and it is jointly shared by them in terms of physical as well as the legal aspects. An arrangement of shared custody enumerates that the child has a legal home in both the houses, it generally does not stay bound to the only visitation by one of the parents. It covers a cooperative effort by both the parents in all the decisions relating to child and one cannot make a decision solely without reaching consensual terms with the other parent. A recent petition filed by an NGO Child Rights Foundation has moved to the Supreme Court seeking a “Joint Parenting Plan”. It highlighted the necessity of shared custody as per the psychological conditions of a minor child in respect of the grave effects that alienation from a parent could cause to the mental health of a child. Hence Shared Custody is an upcoming solution for providing a better environment for the progression of a child.
Shared Custody can be termed as one of the branches of Joint Custody. A shared custody generally incorporated sharing the physical and legal guardianship of a child, which means both the parents are infrequent and continuing contact with the child for a particular time period, after reaching a consensual set of agreement with respect to the schedule of each of them. A shared custody can be termed as a joint physical custody. A joint custody may or may not constitute a fifty percent responsibility with respect to each parent. It can be only subjected to legal custody or essentially custody constituting only visitation rights. In a shared custody all aspects of decision-making is also a joint effort on the part of both parents, the financial aspects are also a joint venture with respect to the development of the child.
Hence Joint custody can be:
Shared custody incorporates all of the three aspects of joint custody.
In recent times, there has been a surge in focusing on providing a healthy environment that leads to the development of a child not only in educational aspects but also keeping into consideration the obliteration of trauma a custody battle brings into a child’s life. It is viewed that if the parents are residing in the same place and area, shared custody could be advisable if not then joint custody could be a more feasible option. Hence the custodial preferences and arrangements depend upon the facts and circumstances of each case.
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1. Guardians and Wards Act, 1890 - A detailed view of the Guardians and Wards Act, 1890.
2. Hindu Minority and Guardianship Act 1956 - A sitemap to the Hindu Minority and Guardianship Act 1956.