Child Custody

Child Custody
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Child custody is exercised by a court where it grants the parents a legal privilege in matters relating to the raising up of a particular child. Physical custody is who the child lives with and legal custody if the parent has the right to make decisions and the child’s major life issues, such as health care or school. The leading principle when it comes to custody is the welfare of the child. The courts ensure that the child is placed in the best interest and keep their emotional, physical or mental health into consideration.

Who gets to be considered a child’s legal guardian?

Custody is not confined to parents only as seen today. In most cases the parents of a child whether married, divorced or separated will have to assume custody of the child. But in special situations, anyone else related to the family, including grandparents or an aunt and uncle may go for custody, for instance where the natural parents are deceased or are physically incapacitated to care for the kids. For example if a parent is mentally ill or suffers from alcoholism or other substance related disorders the court may grant the custodial right for the child to a loyal and fit relative who will take proper care of the child.

Types of child custody

Physical custody

Physical custody is the determination of where the child is going to live. The parent who takes physical custody of the child has to cater for the needs of the child and the needs include shelter, food, education among others. In these circumstances, visitation rights belong to the non-custodial parent of the children.

Legal custody

This type concerns rights to decide on the child’s most significant life concerns, including where to attend school, receiving religious teachings, consent to treatment, or management of personal assets. Legal custody may be awarded by the courts to both parents even where only one parent may be exercising physical custody.

Joint custody

In joint custody situations both individuals are responsible for the child. He or she may reside with one parent for a fixed time and spend the rest of the time with the other parent. 

In this way, joint custody allows a child to thrive in connection with both parents.

Sole custody

In sole custody one parent is given the custody because the other may be considered unfit in a number of factors such as substance abuse, violence or negligence. The parent who is granted custody takes physical custody of the child and the other parent will rarely have the opportunity to even see the child physically or may be granted visitation rights supervised by the custodial parent.

What are the factors that the court looks into when determining custody?

In deciding who should be given custody of a child, the court mostly concentrates on the welfare of the child. Several factors play a role in this decision:

The child’s age

A child who is under the age of five years is placed in the custody of the mother and there is usually no justification for denying the mother’s custody.

Emotional needs

The sensitivity and the attachment that the child has towards each parent are quantified. This can be another point, a parent who spends more time with the child would have a competitive edge.

Financial stability

Although ability to finance is not the only criterion, the ability of the parent to meet the needs of the child, if he or she was alive is taken into account.

Child’s preference

After approximately nine years of age, the child is allowed to testify to the court as to what they desire and prefer, however, this desire has to align with the best interest of the child or else it will not be upheld.

Parents’ behavior

Any previous record of abuse, spousal assault, or criminal record will just serve to put that particular parent on the negative side. However, where it is in the best interest of the child, the court may refuse or restrict the exercise of the parent’s rights concerning the custody of the child.

When can a child make a decision where to live, with which parent?

In the best interest of a child, children over the age of nine are normally permitted to state which parent they would like to live with. But this does not mean that the opinion of the child is final. Judges consider the reasons that a child wants to live with one parent and whether they have the best interest of that child in mind. For instance, if a child has randomly selected one parent to be with because of influence or coercion, the court may well disregard this choice and then come to a conclusion in the best interest of the child.

Under what circumstance does a mother automatically receive the custody of young children?

Historically, there has been a social culture prevailing in many societies including the Indian society that it is the mother who is responsible for taking care of young children. This assumption is usually given with the belief that a child particularly in the age of infancy needs care and sometimes even motherly care. For ages, courts as well have inclined toward awarding the tender-age children especially infants and toddlers to the mother.

But counter now, laws that exist offer a better way when it comes to this issue. The Hindu Minority and Guardianship Act, 1956 has laid down under Section 6 (a) that the child below the age of five years should be in the custody of the mother. This legal position pays attention to the mother in matters concerning the child’s early years concerning affection and physique. This is also recognized under Muslim law where the mother has rights to male children below the age of seven, and Female children below the age of puberty.

However the best interest of the child is the primary consideration for most courts today with regards to the child no matter their age. And although it can be said that in most cultures mothers are the preferred caretakers when children are very young then it is not an inalienable right. However, fathers have the chance of getting custody by demonstrating that they are more capable of taking better care of the child than the mother. Several things such as financial status, support from both parents as well as the needs of the child or the desires of the child as he grows up will be considered by the courts before making the decision.

Consequently, even though the common mentality suggests that the mother has a greater right to custody, contemporary cases tend to concentrate on the child’s best interest.

What happens if both parents want custody?

Most of the time when both parents are asking for custody of the children the court will encourage the parents to resolve this dispute through mediation. In the event that the two parents do not agree on a mode of settling the dispute then the court will get involved and pass a decision by considering issues such as which parent will be suitable to take care of the child, who has the financial ability, and whether the child would wish to live with. At times the easy solution would be joint custody by which both parents can continue to play an active role in the life of the child.

Can child custody arrangements be changed later?

Yes, it is necessary to point out that even the custody arrangements concerning the children may be changed especially when there is a change in circumstances. The parent who had custody of the child can change the agreement if he/she re-marries gets a new job or move without adequate childcare provision for the child. In order to effect this change, the court will have to determine whether it is in the best interest of the child to do so yet again.

What are visitation rights?

Access rights, otherwise called visitation rights, enables one parent, but not the custodial one, to spend time with the child. Hence, the courts for most cases establish a ‎ timetable with the consideration of the duration the parent can visit a child on specified days and at which time. Parenting time may occur at weekends or on holidays or other periods as may be agreed. Sometimes the visitation is supervised depending on the amount of risk the child is likely to be exposed to during visiting sessions.

What happens when one parent refuses to allow the other parent access to the child?

When the parent, who was denied visitation by the other parent, continues to do this soon after the court order, the latter may seek help from the court to demand visitation. The non-custodial parent may be free of any legal repercussions of a violation of the order, although the custodial parent may face legal consequences for the disruption; in the worst of cases, the court might review the custodial arrangement again. Judges know that any child needs to see both parents regularly because it is crucial for the child’s wellbeing to have ongoing relationships with both parents.

What is the role of child support in custody?

Custody and child support are quite similar but at the same time are different in nature. Child support is a cash duty which is associated with the non-custodial parent and is used to cover some of the costs related to the child. The quantum is done in respect to both parties of the marriage, father and mother or both. It depends on their financial status and on the needs of the child. Inability to pay child support can cost him/her legal consequences such as fines but does not mean changing visiting rights unless they are based on child abuse.

How does domestic violence affect custody decisions?

Family violence also has practical consequences on which parent is most likely to gain custody of the children in India. What the law mandates is a court to take into account the welfare and safety of the child and for this reason the information on violence or abuse and any record of aggressive behavior should be important in granting child custody. Here’s a detailed look at how domestic violence influences custody decisions:

Effects of domestic violence to child custody

Every now and again, that involves domestic violence and it is important when examining the ability of a parent to care for the child. Courts are expected to put the best interest of the child first and foremost before any other things such as the relationship that the child may have with the abusive parent. In such circumstances, all that is needed is an evaluation that a parent might become violent and may not be in a position to bring up the child safely.

In the context of the Protection of Women from Domestic Violence Act 2005 if the parent, usually the father, has a history of domestic violence against the mother or children then their prospects of obtaining custody are further damaged. The concern of the court then becomes the avoidance of subjecting the child to further violent or traumatizing experiences, the effects of which might take a rather long time to manifest.

Sole custody rights relating to the non-abusive parent

If domestic violence has been substantiated, then the count usually awards sole physical.child custody to the non-violent parent. 

This is done because the parent or the guardian aims at providing the child with proper upbringing in a safe and stable environment. The non offending parent, which is often the mother in many cases, is only faced with the bare and the only rights infra related to concerns touching the lives of the minor such as education, health or other aspects of life concerning the minor.

The Indian courts act under the ‘the best interest of the child’ rule and any person who is likely to endanger the life of the child will not be given access to the child. The abusive parent may not be allowed physical proximity to the child mostly due to his or her violent nature that poses a danger to the life of the child.

Visitation rights and restrictions

Sometimes after ascertaining custody to the non-abusive parent the courts grant the abusing parent visitation rights that may here be deemed as limited or supervised. In such circumstances, visitation can only be allowed if this will not harm the child and most visitation is supervised or with the help of staff or child protective services. It is also useful so that the abusing parent also sees the child without endangering the life of the child.

However, if the court believes that any contact with the abusive parent would in fact be dangerous to the child then the parents may not be granted visitation rights at all. This decision is based on the kind of abuse and the extent of the abuse that has been done by the abusive parent as well as whether the abusive parents have shown regret and willingness to change.

Supervised visitation

If the parents have been violent in the past specifically to the other spouse and the children, the court can order supervised visitation. This way makes it possible for the child to be accompanied by a social worker or any other attendant to go and meet the abusive parent in person, without any possibility of any harm or endangerment occurring. Supervised visitation is routinely employed when the court thinks that a severance of the connection between the child and the abusive parent may not be in the best interest of the child but they would not want the child to be placed in danger.

Supervised visits enable the court to observe the demeanour of the abusive parent and confirm to court that he or she is observing the laid down stipulations. If the abusive parent comes back to a more appropriate behavior and conducts himself appropriately during visitation period, the court may in future change these visitation arrangements.

Protective Measures for the Child

When domestic violence has taken place, legal systems can provide protective orders that would help to minimize chances of a child being abused. Such interim orders include orders that bar the abusing parent from having any communication or coming close to the child or the other parent. The court may also pass an order for a protection order as stipulated in the Protection of Women from Domestic Violence Act, 2005; to ensure that the child and the other parent are secure from any form of harm.

These precautions are set to afford short term and long-term protection to the child during the determination of the custody issues.

Legal provisions applicable on Child Custody in India

In India, the requirements of laws relating to custody of children differ according to the religion of the parties. Below is a detailed look at the key laws that regulate custody, guardianship, and the welfare of children across different religions:

Indian Divorce Act, 1869 – Sections 41 to 44 ( Christian laws)

The Indian Divorce Act, 1869 largely applies to Christians. With regard to children, Sections 41 to 44 of this Act deal with custody, guardianship and maintenance of children in cases of divorce. There are court orders that can be made regarding custody of minor children with emphasis on the best interest of the child being paramount.

The Guardianship and Wards Act, 1890, a secular civil law.

In India, the Guardians and Wards Act, 1890 is another secular law of the Indian legal system and not restricted to a particular religion. Under Section 7 of the act, the court may appoint a guardian of the person of a minor child, and the welfare of such child shall be paramount.

This Act also comes into force in deciding custody and guardianship especially when the other personal laws do not apply.

Hindu Minority & Guardianship Act, 1956

This Act applies to Hindus, Buddhists, Jains, and Sikhs. Section 6 states that the father has the right to claim custody of a minor child but custody of children below the age of five years is usually granted to the mother. Once again the best interest of the child is put into consideration in the court especially when addressing issues to do with custody.

The Hindu Marriage Act, 1955 – Section 26

Section 26 of Hindu marriage act empowers court to pass interim orders as to custody of and for maintenance and education of children during the pendency of any proceeding under this act for divorce or judicial separation. The court also looks at the child’s preference as well as any evidence as to what would be in the best interest of the child.

The Special Marriage Act, 1954 – Section 38

For the interfaith marriages, the Section 38 of The Indian Special Marriage Act, 1954 states that the Court can have power to make such orders as to custody of minor children or as to maintenance for them or as to education of a minor child as this Court may deem fit. The Act emblemized the best interest of the child, and the court may make such orders as are interim, vary the existing ones on such terms as the need arises.

The Parsi Marriage and Divorce Act, 1936 – Section 49

Parsi Marriage and Divorce Act, 1936 has provided in Section 49 that the courts can exercise jurisdiction and make orders for custody and guardianship on petition for dissolution of marriage. The Act focuses on the best interest of a child and the courts may make orders on a child’s custody.

Muslim Law :custody and guardianship

In Muslim law, there is still a clear and specific separation between custody and guardianship; the former being known by the term “Hizanat.” As a rule, the mother is allowed to take minor children away until they reach a certain age, whereas the father is the natural guardian of his children.

For boys the mother has custody up to the age of seven while for girls up to the time of puberty but it depends on the best interest of the child. The father however, still remains in full authority of the child’s property. Custody under Muslim law is majorly governed by personal laws; there is no particular statutory law dealing with custody but it follows and respects the welfare principle of the child.

Hindu Minority and Guardianship Act, 1956 – Custody of Children Under 5 Years

According to Indian law, Section 6(a) of the Hindu Minority and Guardianship Act 1956, children up to five years of age should be given to the mother. This law also acknowledges that mothers should look after the children that are younger until there are valid reasons for them not to do so.

These governing laws give paramount importance to the child in all matters of custody and guardianship as per the social, emotional, physical, or religious affiliation of the child.

How do I go about getting custody of my child?

Gaining custody of a child in India can either be a structured process but then one needs to be very keen as well as particular. Here's a step-by-step guide to help you navigate the process:

Step 1: Consult a family lawyer

The initial stage involves seeking legal advice from a family lawyer who can assist in the legal proceedings. They will explain the different kinds of custody, including your likelihood of getting custody and what you should probably do in your situation. A lawyer will also assist you in preparing the necessary papers, as well.

Step 2: Gather necessary documents

When filing for custody you will require several supporting documents for this case. These include:

  • Verification of income (pay stubs, income tax returns).
  • Evidence of your relationship with the child (birth certificates, school records)
  • Any legal separation or divorce papers
  • Evidence of the other parent’s behavior (if relevant, such as evidence of abuse or neglect)

These documents will be crucial in proving your suitability for custody in court.

Step 3: If you want to legally establish custody with the child then file a custody petition in Family Court.

Once your lawyer has collected all the documents that are deemed necessary, you will then have to fill a custody petition to the right family court. The petition should clearly state the following aspects: That you want to have custody of the child and the reason why you will have to take custody of the child. The petition is also where you describe your current living situation, your income and other aspects which prove that you will be able to support the childcare.

The petition will also indicate the type of custody you are seeking: It is of sole custody, joint custody or physical / legal custody.

Step 4: issue an application of notice to the other parent

After filing the petition, the court shall enable you to serve the other parent with a legal notice of the custody case. This is a legal procedure which both the parents go through to send an official notice to the other informing them that a legal process has commenced. They will be given a chance to defend themselves and give their testimony in court.

Step 5: attend court hearings

Finally, after the petition has been filed and the notice has been given to the respondent, the Court shall set down dates for other hearings. During the court hearings:

  • Since the issue is between the two parents, each of them will be allowed to make his or her points.
  • The court will determine physical, financial, and psychological fitness of the child towards custody.
  • At some point, the judge may conduct an investigation, have the child undergo a psychology test, or pay a visit to the child’s home.
  • The child’s preferences may also be considered depending on the age and level of understanding that a child has.

These hearings will require the presence of your attorney and you might be required to produce other documents that may be needed by the court.

Step 6: comply with interim custody orders (if any)

Sometimes the court is able to make an order on custody prior to the final judgment to address issues of temporary custody.

You must comply with these orders and continue to demonstrate that your child’s welfare is your priority. Interim custody can sometimes influence the final decision.

Step 7: wait for the final decision

The court will then make the final order on custody once it has heard both parties, and reviewed all the evidence presented to it. This will be done in accordance with the best interest of the child and the consideration will include the financial interest as well as the emotional interest, educational interest and safety interest of the child.

Grant of custody means the judge shall give a clear and more precisely outlined plan of the right of custody and access of the other parent. Where the court refuses to grant you custody, it may allow you to visit your children though this is not a certainty.

Step 8: enforcement of custody orders

This means that once the final order as to custody of the children has been granted by the court, both parents must abide by it: Emotional Mother 12. If the other parent continues to disobey, for example, to deny visitation rights, you can go back to the court to sue for contempt.

How long does it take to go through the custody process?

The time for custody is determined differently, based on the time that it takes during the case hearing. When the parents consent to the issue of custody, it takes not more than a few months to come up with the decision. However, in the contentious matters the process may last for more than one year because of extra hearing or investigation. Custody cases should be disposed of quickly to enable a child to enjoy stability but legal battles may prolong that process.

FAQs

Is it possible for grandparents to be granted custody of an abused child?

Yes, the grandparents can go to court and seek custody if the parents are considered unfit or if the parents have died, are mentally ill or are otherwise unable to rear their children.

What if the custodial parent were to move?

For example when the custodial parent wants to move the child to another city or even another country the non custodial parent can object because this will be against his visitation rights. The court will make a judgment taking the best interest of the child into consideration.

Is it possible for a parent to be held in contempt of custody orders if the parent decides not to follow the order?

Yes, the non-compliant parent can suffer penalties, fines or change of custody of the child. The other parent can go to court seeking to enforce the order which has been made.

Does remarriage of a parent impact the ability to seek custody?

It was thus established that remarriage per se does not alter the rights concerning the custody of children. However, if the new marriage results in child endangerment then the court might want to reconsider child custody.

Can a child decide to live with a noncustodial parent despite the arrangement being made with the custodial parent?

The judge may consider the child’s preference, especially if he or she is of reasonable age to understand the situation, but the final decision made by the court shall be in the best interest of the child.