Divorce and mitigation

Dear Client,
The first step in seeking custody or visitation of a child is to file a petition in the Family Court/District Court where the child resides. The petition can be filed by either parent, grandparents, or any other person who has an interest in the child's welfare. Even if one parent has custody, the other parent will have visitation rights. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years of age is given to the mother. As per the Guardians and Wards Act 1890, once a child achieves the age of 9 years in India, his/her preference for custody is considered by the Court on appeal seeking custody of a child by either parent. Fathers can get sole custody of their children. To do so, first and foremost, he must establish the unfitness of the mother before the Court seeking the custody of the child. The court must also feel that the father meets the "best interest standard" and the well-being of the child. In addition, there are aspects of a custody case where fathers may have an additional burden to prove that mothers do not. These include paternity, the primary caretaker role, and home environment quality. Only in case the court feels that the mother is unfit to take care of the child, the custody will go to the father. Family Court also decides the frequency, place, and duration of such visits. The parent with custodial rights will generally have more power and influence. Be informed that "virtual visitation," such as video calling, is an option recognized in many states. Courts are more likely to issue fixed visitation schedules because they provide stability. Fixed visitation schedules can be modified later by approaching the Court. An advocate has a fiduciary duty to protect the client's interests through honest and ethical means, regardless of the potential for negative outcomes for the advocate or any other parties. In the case of Chandra Shekhar Soni v. Bar Council of Rajasthan and Others [AIR 1983 S.C. 1012], the Hon’ble Supreme Court of India held that “It is not per se professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts. Counsel's paramount duty is to the client and where he finds that there is a conflict of interests, he should refrain from doing anything which would harm any interest of his client. Typically, such type of conduct on the part of an Advocate may be considered professional misconduct once a complaint is filed against the Advocate by the litigant/client under Section 35(1) of the Advocates Act, 1961 before the disciplinary committee of the State Bar Council. Further, when a husband files for Restitution of Conjugal Rights post filing of divorce petition by the wife seeking decree of divorce on the ground of cruelty, it can lead to a complex legal situation with several potential consequences. So, considering the complexity of the cases filed by both spouse against each other, it is advisable to consult with your counsel/lawyer to understand your rights and remedies to defend the cases effectively before the courts.