Topics on Child Custody that can help for an Informed Decision.

CUSTODY - It’s your child’s life - Fight! Protect.

It is the hardest thing in the world - for a child to see his parents separate. A child’s life gets affected the most during a divorce. The term “child custody” refers to a parent's rights and responsibilities towards their child. Through custody, basic decisions like who the child lives with, who takes the important decisions in the child’s life are decided.

As per the legal definition, Child Custody is basically legal guardianship of a child under the age of 18.

Child Custody refers to the physical custody of the child in a divorce case.  If the parents are not alive or if the Court is convinced of their combined inability to take care of the child, other relatives may be given custody.

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Who can claim custody?

Custody can be claimed by the parents of the child. Mothers usually tend to get the  custody of her minor child under the age of five (5). Fathers get custody of older boys and mothers of older girls. This however, is not a strict rule and is primarily decided based on the child’s interests. The choice of a child above the age of nine (9) is considered. A Parent founded to be neglecting their child ill-treat them is not given custody. The issue of child  custody is based on the principle of best interest and welfare of the child. 


Types of Custody

Legal Custody - This is the custody awarded to either parent by way of a Court order.

Physical Custody - Physical custody refers to where the children live on a regular basis.

Joint Custody - This is a situation where both Parents have custodial and visiting rights. Sometimes, a parent might have a more dominating right than the other.


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Read to know when to apply for child custody.

As such there is no specific law which says what is the right time is to file for the child custody. A petition for Custody can be filed after or before a divorce proceeding has been initiated.The petition can also be filed, during the divorce case for interim custody of the child.

When the custody application should be made, solely depends on the facts of the case. For instance, in the event of there being no divorce but only judicial separation or even when there is no legal separation, but both the parents do not live together, than either of the parent can file a petition for the custody of the child. In a Custody battle, what is to be decided is with whom the child is going to reside and who will take decisions related to his/her day-to-day life till the time the child attains majority.

However, generally the petition for custody is filed during matrimonial disputes only i.e. when couples file for divorce. In that scenario, simply for practical purposes, it is suggested that a custody petition should also be filed simultaneously with the divorce petition. It saves time as well as money and the court can decide on both the petitions together taking a more comprehensive view of the case, because then ancillary issues like maintenance, alimony etc. are also decided taking custody of the child into consideration.

As custody is one of the most important decisions made during a divorce case, it is important that the interest of the child is taken into consideration, while deciding the same. Various factors determine which parent gets the custody - financial status, age of the child, gender of the child, mental and emotional health of the parent, safe and secure environment to the child etc.  
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Read about Steps to Prepare for Child Custody

The uncertainty, the fights, the stress and the change - they all affect the child’s mental and emotional health. During a divorce - the child’s custody, unfortunately becomes a topic of contention because of reasons as petty as ego. Child custody issues are very sensitive to deal with. On the top of that, all the legal formalities, procedures and available recourses, which you might not be aware of, can make or break your case.

Honestly, it’s the matter of your child’s future. You can’t gamble on that, right?
Okay, imagine this scenario- After all that tension that has been going on between you and your spouse, your child is the only reason that keeps you going, helping you to stay positive about life. Suddenly, all of that is taken away. No, not because you loved your child any less but because your spouse had a lawyer equipped enough to convince the court that you weren’t capable enough to take care of your child.

Now back to reality- you can avoid this dilemma simply by getting a child custody lawyer. If you and your child already share a great rapport, hiring a lawyer would be an added advantage for your case.

Advantages of hiring a child custody lawyer:

  • A lawyer will know exactly the kind of documents  required to complete the paperwork. Most common reason for delay in hearing of cases is incomplete paperwork.
  • A lawyer can help in preparing a strong case  by drafting a concise and clear petition for child custody on your behalf, mentioning all the relevant details in an unambiguous language since these matters are fact-sensitive.
  • Apart from drafting, it is very important to put across the points to the judges during the arguments. A lawyer won’t hesitate in speaking what needs to be stated within proper conduct.
  • An experienced lawyer will help in your case by striking the best available recourse beneficial and fair for everyone involved.
  • A lawyer can guard  against any procedural disadvantage that one might face if one decide not to hire a lawyer.

Above everything else, the lawyer won’t fail to draw the line between your child’s interests and your own. The court’s primary concern is to arrive at a decision which is in the best interest of a child.

At MyAdvo, we consider your interest to be as important as ours. We not only curate the lawyers as per your requirements to file for child custody, but also help you get the perfect choice, considering your special needs. Our clients have rated them, tested them and of course - trusted them. 

Humans, unlike the rest of the animal kingdom, require due care and guidance to sustain till they reach a certain age. No, it has nothing to do with laziness, but that’s how the nature intended it to be. Children require not only physical or mental support but most importantly financial support from their parents. In legal terms we call it ‘maintenance’.

Maintenance is inclusive of all the things you have to do for raising a child; it is the amount you pay for their lifestyle! From paying their school fee to taking them to Disney Land, from buying them science books to colour pencils, from providing clothes to accommodation, from tuitions to karate classes, from a trip to the dentist to a burger from McDonalds- a parent cannot possibly shy away from these basic responsibilities towards their child.

Yes, indeed! According to the Section 20 of the Hindu Adoptions and Maintenance Act, 1956, it is imperative for both the parents to maintain their minor child, whether legitimate or illegitimate. Parents are bound to maintain their unmarried daughter even if she attains the age of majority which is 18 years, if she is unable to maintain herself out of her own earnings.

Legally, it is the father who bears the maintenance of the children, provided he has the required earning capacity to do so. According to the Section 125 of the Code of Criminal Procedure, 1973, if he fails to do so even when capable, the court can order for his imprisonment,as refusing to bear the expenses of his child is an offense. Hence, child maintenance covers all aspects of a person’s lifestyle till he becomes independent. Parents are morally and lawfully obliged to make a child worth sustaining himself.

You must have watched the movie ‘Akele Hum Akele Tum’ where the protagonists Kiran and Rohit contest a case for the custody of their child Sonu. Spoilers alert:

The court grants the custody to Kiran and eventually things take a turn for the better and the family reconciles.

Wait a second- What about the custody order? Was it changed or modified? Is that even possible?
While the mainstream cinema ignores to answer the real questions, let’s find out the answer through the set precedents.

To answer the question- Yes, it is possible to modify or change custody orders but the non-custodian parent needs to show that there has been substantial change in the circumstances surrounding the child.

Life is not a movie. If the parents have reconciled, like the case in hand (read: Akele Hum Akele Tum) it wouldn’t be that much of an issue to modify the custody order since the key factor is to decide what’s in the best interest of the child. In real life though, happy endings are a rarity.

The substantial change can be good or bad. For example, a non-custodian father who used to be an alcoholic has reformed drastically and earns a good income, enough to provide proper care to the child. Or, a custodian mother has become a drug addict and neglects the child, creating a harmful environment for the child.

The Supreme Court of India, in a recent judgment (ABC vs. The State (NCT of Delhi) 2015 SCC 609) showed a green signal to challenge the custody order if the child’s welfare is at risk. It also gave the power to the uninvolved parent to approach the court to challenge, change or modify its orders if the best interests of the child so indicate. If a person is genuinely concerned for the welfare of the child, he/she can question the custody order.

Always remember that you have the power to make or break your child’s childhood. Do what’s in their best interest!

Read about child custody laws in India
 The courts generally follow the principle of “tender age” where it is presumed that a Child during his/her “tender” years (generally below the age of 5 years, though it varies across different religions) a child needs the love and care of the mother i.e. young children cannot manage without their mothers. 

It is for this reason that mothers are preferred custodians over father for young children, unless she is disqualified and found unfit or unfavourable to the welfare of the child. It must be understood that none of the parent automatically gets the custody of the child. Age of the child being a criterion for determining who should get custody weighs in favour of the mother because she is seen as the primary caretaker of the child who plays a prominent role in the growth of the child.

Even the various personal laws applicable to different religious communities in India favour custody of children of tender years and girls in favour of the mother. For example, the provisions of Hindu Minority and Guardianship Act, 1956  and The Guardians and Wards Act, 1890  provide that child who has not completed the age of 5 shall stay with the mother, similarly under Muslim law custody of a boy below the age of 7 years and in case of a girl before she attains puberty is given to the mother. Therefore, a mother is a preferred custodian for younger children whereas for older ones’ factors like personal law, interest, benefit, character of the parent etc. are important.

To clarify,  a mother is disqualified from getting the custody of younger children, if there is proven misconduct, bad character, maintains a lifestyle which is inappropriate for the child, physical or sexual abuse, etc. However, if she has committed a “matrimonial fault” then she is not disqualified because the aim behind giving custody to a parent is not punish the guilty party but to ensure that the “best interest of the child” prevails.

Financial stability is one of the factors determining the decision in a custody battle. However, it is not the sole criteria for giving the custody of a child to a particular parent.

It is the “best interest of the child” which is of paramount consideration. It is for this reason that fathers cannot be granted custody of the child/children solely on the ground that they are better off financially than the mother. Similarly, a mother cannot be denied custody only on the grounds of her not having an independent income or not enjoying an economic superiority over the child’s father. It is because in the event of divorce, the husband can be asked to pay maintenance to the divorced wife which can then be used for bringing up the child.

At the same time, it must be noted that a mother cannot  be granted custody simply because she is a working woman.

Thus, though financial stability is an important factor in determining security as well as overall well-being of the child, it cannot be an overriding criteria to other aspects  like, age and sex of the child, child’s happiness, environment at home, health, social interest, character of the parent, proximity of the child to the concerned relation etc. Courts generally seek to strike a fine balance between these considerations while deciding issues of custody. Therefore, a father earns more than a mother or a mother earns more than a father, does not entitle a parent to get the custody of the child.

While deciding a custody dispute irrespective of everything a “child’s best interest” assumes the primary importance. It is the welfare of the child which is the focal consideration while deciding the issue of  the custody of the children. Over the years through various judicial decisions it has been suggested that this best interest of the child encompasses various factors like age and gender of the child because infants, tender aged children, young girls are generally given to mothers, personal law of the minor, character and capacity of the parents, proximity, understanding with the child, environment at home, financial stability, educational qualification, wishes of the child etc. Thus, there are number of parameters that courts in India consider before giving custody of the child to a particular parent.

There is no hard and fast rule of settling custody disputes as it varies from case to case. What the court essentially aims to decide is in the given situation where does the best interest of the child lies. Is it with the father or the mother? It is in line with this aim the Court sometimes even reconsiders its decision if the child is not happy or the circumstances have changed dramatically. Also, it is usually a practice not to separate the siblings i.e. generally custody of all the children goes to the same parent.

Since both parents are equally important for the growth and development of the child, the non-custodial parent if eligible (good character, reinforcement of the relationship with the child, not causing harm etc.) gets the visitation rights. Under visitation rights the non-custodial parent gets access to the child, he/she can meet the child for specific time period. Like custody, considerations for visitation rights are also the best interest of the child and the affection and benefit that the child would receive with such visitation rights.

Factors relevant & irrelevant for custody