When couples part ways through the dissolution of their marriage the issue that is addressed first and foremost are child custody. Once couples get divorced or are legally separated the children ought to have a place to stay with either parent if the children are below the age of eighteen. There are specific rights and responsibilities towards children that parents need to fulfill which puts the couples in a quandary once they decide to divorce. Parental custody is one of the contentious issues bothering parents and the children alike with every parent trying their utmost for gaining parental custody legally.
According to Indian Law, the primary consideration regarding divorce in India is the child’s welfare which tops the list of priorities in comparison with the priorities of disputing parents. Whichever parent is financially capable of supporting and taking care of the child is the fittest parent ensuring that the child has a decent upbringing would be awarded child custody.
Therefore, it's pretty much an open and shut case according to child custody lawyers as the parent fulfilling the criteria for winning the child custody battle would obviously get the custody of the child, hands down. Nonetheless, for children below the age of 5, the mother by default would get custody unless the mother is clearly unfit to raise the child. Children above 9 years of age have the discretion of who would be their custodial parent. Thereafter, with the introduction of varied forms of custody, the father gets the same opportunity as the mother in child custody matters.
Types of child custody
1. Physical custody: A declaration is made by the court regarding their decision on who would be the custodial parent and accordingly the child moves in with that parent.
2. Joint Physical Custody: This is a type of custody that has got legal validation in recent times wherein both parents agree to take care of the child, and both parents get legal custody of the child but the child’s physical custody could be awarded to either parent and therefore either one of them becomes the principal caretaker
3. Sole custody: In instances where the court pronounces a parent unfit to be the custodial parent, the entire custody of the child goes to the parent who is deemed fit
4. Third-party custody: Both parents don’t get custody of the child rather, the court awards custody to a third party.
Legal provisions for parental custody
The Guardians and Wards Act, 1890 is The Common Law offering recourse to divorced parents fighting custody battles. The rules and regulations, as well as recourse regarding parent’s custodial issues, are under the jurisdiction of this The Guardians and Wards Act, 1890. The is about general laws regardless of the parents’ religion. Since India is a secular state, there are personal laws that people from varied religious backgrounds have to abide by following their custom.
With times changing, mindsets are changing as well. The courts these days are considering the disputes over child custody as a child’s right and not of the parent. The children's best interests are considered to be of utmost priority as disputes over custodial rights are resolved. Even if a parent provides child support, the court as the arbiter can change that. Parents have the option of paying either in lump-sum settlements or in part payments. Once the divorce is final, the children are the court’s responsibility exclusively and decisions of the court thereafter are focused on the children’s welfare.
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