The issue of ‘Child Custody’ crops up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts. It refers to the process of controlling, caring and maintenance of the child less than 18 years of age by the custodial parent (the rights have been granted by court) under set parameters such as financial security, understanding with child, lifestyle, etc. The prime rights of nurturing the child with respect to education, development, medical, emotional, physical, etc. lies with the custodial parent while the non-custodial parent only holds the right to access and meet the child.
In innumerable cases, both the parents are provided with access to the child, but the physical custody of the child is usually granted to one parent. The Family Courts while deciding on this need to keep the best interests of the child as of paramount importance.
What is the Definition of Legal Custody?
In a family law context, “Legal Custody” is a type of Child Custody that grants a parent the right to make important, long-term decisions regarding their child or children. This may include aspects of the child’s upbringing including:
Types of Child Custody in India
The Judiciary in India, in a number of innumerable judgments, has held the view that the best interest of the child in Child Custody cases, needs to be given utmost importance, surpassing all the legal provisions laid down. The court grants the right to child custody either to one or both the parents under certain rules and regulations.
Evaluating the sensitivity in the matter, the Indian Law allows parents to seek Child custody as per its below mentioned forms, which are:
Physical Custody
In physical custody, a child lives with the custodial parent and undertakes all the day to day activities.
Joint Physical Custody
In joint physical custody the child lives with both the parents for a significant time period. In such a set-up, both the parents have equal rights on their child.
Sole Custody
In Sole custody, the entire right to live with the child lies in the hands of one parent only. This often happens in cases where in the other parent is abusive, instable, violent or incapable in nature.
Third Party Custody
In third party custody, none of the biological parents have any right on the child. Instead, the child custody is granted to the third person by the court.
What the Legislation has a say about Child Custody?
As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.
The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death, the custody shall be given to the mother.
In case the child is illegitimate then the custody shall be with the mother itself.
If the parents are not willing to take the custody of the child or if the court thinks that for the welfare of the child it would be better if he is not kept under the guidance of the parents then even a third person may be allotted the custody of a Hindu child. In this case usually, the grandparents are that paternal or maternal will be preferred to get the custody of that Hindu child if they are interested.
If neither the parents nor any of the close relatives of the child are initiating to take the custody of the child then the court by itself shall find an appropriate person who could take the custody of the child. It is advisable to consult a child custody lawyer who may explain the applicable laws in the said facts and advice accordingly.
Which Parent Can Be Granted Legal Custody?
At the present time, most courts attempt to grant both parents equal rights with regards to legal custody. This is to help the child interact with both parents rather than just one. However, in some cases, the court may grant only one parent legal custody. This is especially true where one of the parents is deemed unfit to make decisions on behalf of the child.
When determining which parent should be granted legal custody, the courts may consider many different aspects, including:
As with any child custody decisions, legal custody determinations are made with the “best interests of the child” in mind. This means that the needs of the child take preference over any personal desires or intentions of either parent.
Child Custody for Fathers: How can a Father Get Full Custody of His Child?
When it comes to father custody rights, various questions can arise.
Custody battles for fathers can sometimes be challenging. While most courts have discarded older notions that the mother is automatically the primary caregiver, many mothers and other persons in society still hold these types of notions, but there are some situations when a father can claim custody or even full custody of child by proving any of the following reasons given under.
Father Gets the Custody in The Following Manner
In India, it is believed that no one can be a better caregiver than a mother. Unfortunately, it is not true all the time.
Though while giving the custody the mother is given the first priority, the father can get it by following ways:
If the mother is willing to give up the custody of the child, then the father may get custody.
- If the mother is not mentally stable, the father is the next person to get custody of the child.
- If the child is of 13 years or more and expresses his wish to stay with the father, the Court shall grant it to the father.
- In case the mother is of an immoral character, which may affect the child as well, the father gets the custody.
- If the father can prove the financial incapacity of the mother which shall in future affect the upbringing of the child and also prove his financial capability to take good care of the child.
- If the father can prove that the background of the mother has been in dark and that if the child will stay with the mother it will prove to be fatal to the upbringing of the child or shall affect his mental and physical growth.
- If the mother is a convict herself, the custody of the child shall thereafter go to the father.
Although the above – mentioned points are few of which are used in the court to get custody. The same is not exhaustive and can vary depending from case to case on the basis of facts and circumstances. For better understanding of facts of your case and application of laws, contact with custody lawyer in Mumbai if you are located in Mumbai. Local lawyers help with local laws, if any. They also help represent in the court of laws efficiently. Thus, one should also consult a child custody lawyer in Bangalore if residing in the city.
Can a Father Fight for Child Custody If He is Not on the Birth Certificate?
Whether or not a father’s name is listed on a birth certificate can have significant impacts on their custody rights. In most cases, if the person’s name is listed as the child’s father on their birth certificate, courts will automatically conclude that they are the child’s legal father. They will then be granted various custody rights as the legal father of the child.
In many cases, even if the person is not the child’s biological father, if their name is listed on the birth certificate as their father, courts may still grant them custody rights. They may also impose various duties on them, such as the duty to pay child support if this arises in the future.
If the father’s name is not on the child’s birth certificate, they may often not be granted any custody rights over the child, whether partial or full custody. If they wish to gain legal rights, and they are the biological father of the child, they may need to undergo a paternity test to prove to the court that they are the biological father.
Child custody laws:
The laws governing Child Custody cases in India, broadly, fall under following Acts :-
Guardian and Wards Act, 1890
- Section 26 of Hindu Marriage Act,1955
- Hindu Adoption & Maintenance Act,1956
- Section 38 of Special Marriage Act, 1958
- Hindu Minority and Guardianship Act, 1956
- Custody Under Muslim Laws
Place where child custody case is filed
Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody to the exclusion of all other courts. Parents in contact with a divorce lawyer in Kolkata may contact for custody related issues as well.
Procedure to file child custody case
A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody application for Interim or Temporary custody as well as Visitation Rights.
Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.
As stated above in certain situation and exigencies a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or a write petition under article 226 of the Constitution of India can be filed.
Key points
Child custody cases are emotionally taxing for parties, concerned counsels, as well as the Judge(s).
Generally, the age of majority is eighteen years and, in some cases, it is twenty-one years.
Nowadays courts often take the helps of experts such as counsellors, psychologist or other specialist dealing with issues of child custody.
It is extremely interesting to note that all judgements that attain finality bound parties with the final outcome. However, the decision or the judgements of child custody cases are never final. It is a departure from the general law. To explain further, Custody of Child has been awarded by judgement or by mutual consent through MoU to one of the parents. However, the welfare of the child is prejudiced by the acts and omission of the custodial parent.
Conclusion
For a father, custody can be difficult to win, even though the courts do not discriminate against fathers. Whether you are a father going for full custody or joint custody, you should be prepared for a difficult child custody battle, especially if the child's mother is also fighting for custody. Consider the following tips to help a father get custody.
- Pay child support payments within time.
- Build a strong relationship.
- Give respect to the child and as well the mother.
- Maintain accurate records.
- Attend important school and social gatherings.
- Make sure everything you are doing is for providing good life to your child.
Children are mostly attached with their mothers, so when a father wants to have a custody or full custody he must think about his child’s wish and definitely what is good for their children’s life because custody battels are already traumatic and exhausting experience for a child to go through, so the first priority of a father should be to make sure that everything he is doing for their children is to provide happiness and good life.
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