Child Custody After Divorce: What to Know

by  Adv. Rupa K.N  

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child custody

Introduction

Divorce is a difficult and emotional process for all parties involved, especially when children are involved. One of the most contentious issues in a divorce involving children is determining custody arrangements. The well-being and happiness of the child must be the top priority when making custody decisions.

What are the different types of custody arrangements?

There are different types of custody arrangements, including:

  1. Physical custody: This refers to where the child will live after the divorce. The parent who has physical custody is responsible for the daily care and supervision of the child.
  2. Legal custody: This refers to the right to make decisions about the child’s upbringing, such as education, healthcare, and religion. Both parents may share legal custody, or one parent may have sole legal custody.
  3. Joint custody is a type of custody in which both parents have legal and physical custody of the child. This means that the child lives with both parents and spends time with each parent on a regular basis. Joint custody allows both parents to have a say in important decisions related to the child’s upbringing, such as education, healthcare, and religion. Joint custody can only be awarded if both parents agree to it or if the court deems it to be in the best interests of the child.
  4. Sole custody, on the other hand, is a type of custody in which one parent has legal and physical custody of the child. This means that the child lives with one parent, and the other parent has visitation rights. The parent who has sole custody is responsible for making all major decisions related to the child’s upbringing, such as education, healthcare, and religion. Sole custody is usually awarded if one parent is deemed unfit or unable to take care of the child, or if joint custody is not in the best interests of the child.

It’s important to note that custody arrangements can vary depending on the specific circumstances of each case. The court will always prioritize the child’s best interests when making custody decisions. Therefore, custody arrangements may be modified or changed over time to reflect changes in the child’s needs or circumstances.

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What happens to Child Custody in case of Mutual Divorce?

  • In a mutual divorce, where both parents agree on the terms of the divorce, they may also agree on a child custody arrangement. However, it’s important to keep in mind that the child’s best interests should always be the top priority in any custody arrangement.
  • If both parents agree on a custody arrangement, they may present a joint proposal to the court. The court will review the proposal to ensure that it’s in the best interests of the child, and if the court approves the proposal, it will become part of the divorce decree.
  • The custody arrangement may include details such as the type of custody (physical and legal), visitation schedules, and how the parents will share decision-making responsibilities. The custody arrangement should also include a plan for how the parents will handle any disputes or changes that may arise in the future.
  • It’s important for parents to work together to create a custody arrangement that is in their child’s best interests, even if they are divorcing. If both parents can agree on a custody arrangement, it can reduce the stress and emotional strain on the child during the divorce process.

How does Child Custody Work in India?

Under Hindu Law

Child custody is governed by the Hindu Minority and Guardianship Act 1956. This law applies to Hindus, Buddhists, Jains, and Sikhs, and it sets out the rules for determining the custody of a child.

The Act provides for the following types of custody:

  1. Natural guardianship: The father is the natural guardian of a Hindu minor child. However, if the father is deceased or unfit to be a guardian, the mother becomes the natural guardian.
  2. Testamentary guardianship: A guardian can be appointed by a parent in their will. This type of guardianship takes effect after the parent’s death.
  3. De facto guardianship: If the child has been living with someone other than the natural or testamentary guardian, that person may be considered the de facto guardian. This can happen if the natural or testamentary guardian is unable to take care of the child.

It’s important to note that in Hindu law, the concept of guardianship extends beyond just physical custody. It also includes the right to decide about the child’s education, healthcare, religion, and other important matters. The court may grant legal custody to one or both parents, or it may appoint a separate guardian for the child’s care and welfare.

In Hindu law in India, the custody of a child above 5 years old is determined based on the best interests of the child. In general, the mother is considered the natural guardian of the child, and she is often given custody, especially for younger children. However, in cases where the mother is found unfit or incapable of providing proper care and protection for the child, custody may be given to the father or another suitable guardian.

Under Christian Law

In India, Christian laws regarding child custody after divorce are governed by the Indian Divorce Act of 1869. Under this act, the welfare of the child is the paramount consideration in determining custody arrangements. The court will take into account several factors, such as the child’s age, emotional and physical needs, and the parent’s ability to provide for the child.

People also read: Divorce Petition by Wife

Who has the Priority Claim to the Custody of a Child?

In India, the welfare and best interests of the child are the primary consideration in custody cases. Both parents have equal legal rights to seek custody of their child, and there is no gender bias in custody decisions. The court will consider various factors, including the child’s age, health, education, and the ability of each parent to provide for the child’s physical, emotional, and social needs, before making a decision on custody.

Confused about Child Custody? Get Professional Legal Advice and Ensure Your Child's Well-being!

What are the Child Custody Laws in India in 2020?

In India, the law governing child custody is the Guardians and Wards Act, of 1890, which sets out the rules and procedures for determining custody of a child. In addition to this, the Personal Laws of various religions, such as Hindu, Muslim, Christian, Parsi, and others, may also apply in certain cases.

In 2020, the Indian government passed the ‘The Personal Laws (Amendment) Bill, 2019’ which proposed certain changes to the child custody laws in India. The bill aimed to make child custody laws more gender-neutral by removing the presumption that a child’s welfare is best served by the mother. However, this bill has not been enacted into law yet and remains pending in the Indian parliament.

Under the current laws, the court may grant custody to either parent, depending on the child’s best interests. In cases where the child is of a tender age, custody is generally granted to the mother. However, as the child grows older, the court may consider the child’s preference in deciding custody.

In addition to the above, the court may also consider several factors, including the child’s age, health, education, the financial status of both parents, the ability of each parent to provide for the child’s needs, and any history of domestic violence or abuse.

Here are two notable Child Custody cases in India:

  1. Ruchi Majoo vs. Sanjeev Majoo (2011): In this case, the parents had filed for divorce, and the mother had filed a petition seeking custody of their two daughters, who were 9 and 6 years old. The mother argued that she was better suited to care for the children and that the father had a history of domestic violence. The father argued that the mother was not fit to be the custodial parent because she had a history of alcohol abuse. The court considered the best interests of the children and their welfare and granted custody to the mother.
  2. Priyadarshini Matoo va. State (2006): In this case, the father was convicted of murdering his daughter, Priyadarshini Matoo, who was a law student at the time. The mother filed a petition seeking custody of their younger daughter, who was a minor. The court granted custody to the mother, stating that the father’s conviction for murder was a strong factor against granting him custody.

These cases demonstrate that the court’s decision on child custody is based on the child’s best interests, and the court takes into account various factors, such as the child’s age, health, education, and the ability of each parent to provide for the child’s needs. The court may also consider any history of domestic violence or abuse and the child’s preference if the child is of a certain age and maturity level.

Which factors constitute the Welfare of a Child?

In India, the welfare of a child is the primary consideration in custody cases, and the court will consider various factors to determine what is in the child’s best interests. Some of the factors that may be considered include

  • The child’s age, gender, and health.
  • The child’s educational and developmental needs.
  • The child’s emotional and psychological needs.
  • The child’s relationship with each parent and other family members.
  • The ability of each parent to provide a safe and stable home environment.
  • The financial stability and resources of each parent.
  • The willingness of each parent to facilitate the child’s relationship with the other parent.
  • The child’s community ties, including school, friends, and extracurricular activities.
  • Any special needs or circumstances of the child, such as medical needs or disabilities.
  • Any other factors that the court considers relevant to the child’s well-being.

How to win Child Custody for Fathers in India?

Here are some steps that fathers can take to increase their chances of winning child custody in India:

  • Hire an experienced family law attorney: An experienced family law attorney can help fathers navigate the complex legal system and ensure that their rights are protected. The attorney can also present a strong case on the father’s behalf, highlighting their ability to provide a safe and loving environment for the child.
  • Build a strong case: Fathers can build a strong case by gathering evidence that demonstrates their ability to take care of the child. This may include evidence of their financial stability, their involvement in the child’s education, their relationship with the child, and any other factors that show that the child’s best interests are served by being in the father’s custody.
  • Maintain a healthy relationship with the child: Fathers can demonstrate their commitment to the child by maintaining a healthy and active relationship with the child. This may include spending time with the child, being involved in their daily life, and showing that they are a positive and supportive presence in the child’s life.
  • Cooperate with the other parent: In cases where a co-parent exists, fathers should cooperate with the other parent in matters related to the child, including visitation, education, and healthcare. This will demonstrate to the court that they are capable of working together in the best interests of the child.
  • Be prepared for the court process: Fathers should be prepared for the court process, which can be lengthy and complex. They should attend all court hearings and provide all necessary documentation to the court. They should also be respectful and courteous to the court and the other parties involved in the case.

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How to win Child Custody for Mothers in India?

However, here are some general guidelines that might be helpful in winning child custody for mothers in India:

  • Establish yourself as the primary caregiver: Show that you are the primary caregiver for the child and that you have been actively involved in their upbringing. This can include providing evidence of your roles in the child’s daily routine, such as school drop-offs and pick-ups, medical appointments, and extracurricular activities.
  • Demonstrate financial stability: If you are financially stable and can provide for the child’s needs, it can work in your favor. Provide evidence of your income, assets, and financial support for the child’s needs, such as education, healthcare, and other expenses.
  • Show that the father is unfit: If the father has a history of abuse, neglect, addiction, or any other behavior that can harm the child’s well-being, you can present evidence of such behavior to support your case.
  • Seek legal assistance: Child custody cases can be complicated and emotionally draining, and it is essential to seek legal assistance from an experienced lawyer who can guide you through the legal process and help you build a strong case.

Conclusion

  • Custody battles can be lengthy and emotionally draining, and it is advisable to try and resolve such issues amicably through mediation or negotiation. It’s important to note that custody arrangements can vary depending on the specific circumstances of each case custody.
  • In India, child custody laws are primarily based on the principle of the best interests of the child. Therefore, winning child custody for the father and mother involves demonstrating that they can provide a safe and stable environment for the child and that they are willing and able to meet the child’s physical, emotional, and educational needs.

Frequently asked questions about Child Custody in India

Q 1. How is child custody determined in India?

Ans. Child custody is determined based on the best interests of the child. In cases of divorce, the court will take into account several factors, such as the child’s age, emotional and physical needs, the parent’s financial stability, and the parent’s ability to provide for the child.

Q 2. Can a child choose which parent to live in India?

Ans. In India, a child’s preference is considered when determining custody, but it is not the sole deciding factor. The court will take the child’s opinion into account but will also consider other factors, such as the child’s age, emotional needs, and the parent’s ability to provide for the child.

Q 3. Can grandparents or other relatives get custody of a child in India?

Ans. Yes, under certain circumstances, grandparents or other relatives can get child custody. The court may grant custody to a grandparent or relative if they can prove that they have a close relationship with the child and can provide for the child’s emotional and physical needs.

Q 4. Can child custody agreements be modified in India?

Ans. Yes, child custody agreements can be modified in India. If there has been a substantial change in circumstances, such as a parent moving to a different location or changing the child’s needs, either parent can file a petition to modify the custody agreement. The court will consider the new circumstances and make a decision based on the best interests of the child.

The decision about custody is made on a case-by-case basis, taking into account the specific circumstances of the family involved. It's important for parents to work with their attorneys or child custody lawyer and the court to create a custody arrangement that is in their child's best interests.

Adv. Rupa K.N

Adv. Rupa K.N

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Advocate Rupa K.N, with over 24 years of independent practice, specialises in providing legal expertise, advice and guidance to a broad range of customers. Having been practising law independently for several years after doing her B.A. LLB from Bangalore University and PGDM from the National Institute of Personnel Management.

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