Child Custody cases are among the most emotionally charged and legally complex matters encountered within family law. The determination of custody arrangements impacts not only the parents but also profoundly influences the well being and development of the Child Involved. Understanding the Legal framework governing child custody is essential for all parties involved , including parents , legal professionals and most importantly the children the child themselves.
There are two main types of Custody :
- Physical Custody : This refers to where a child lives on day to day basis. In some cases one parent may can have sole Custody which means child live with them most of the time whereas the other parent may have visitation rights. While, in some of the cases both the parents may share equal rights where child get equally time of both the parents.
- Legal Custody: This refers to the decisions about the child upbringings, such as decision regarding education, healthcare etc. Legal Cutody can be either Sole or Joint. Although if one parent share sole custody both the parents can share Legal Custody.
- Sole Custody v. Joint Custody: Sole Custody is where child is where one Parent has the child for majority of the time whereas Joint Custody is where both Parents Share Custidy.
Courts mainly determines custody arrangements as per WELFARE OF THE CHILD.
Factors including in determining Child Custody are:
Relationship of Child with each Parent
Each Parent ability to provide for the child’s physical and emotional needs.
Any history of abuse by either of the parent.
The child preferences ( Depending upon child’s age and maturity)
Explanation of the ‘’best interest of the child’s standard and its significance in custody decisions.
Legal Procedure available to us for child custody disputes
Overview of legal procedure for initiating a child custody case i.e filing petitions in court regarding disputes
Alternative dispute method i.e Mediation Center , Collaborative law
Importance of consulting with Legal Advisor with proper explanations.
Modifying child custody Orders:
1: Circumstances of Modification : Explanation of when and how child custody orders can be modified such as child’s need, relocation of one parent etc.
2. Legal Process for Modification: Overview of the legal process for modifying child custody orders, including filing a petition with the court and attending a court modification hearing.
Who can file Custody of a child?
Custody of a child can be filed either by Mother or Father of a child. Any of the Parent who thinks they are not in the picture due to any situation or operation of other laws. Any such Parent can file a petition in court to seek interim or sole custody of the child.
Custody shall be denied on merely a ground of Adulterous Act?
In a recent case Husband filed custody application in Bombay High Court while the divorce petition between the Husband and Wife was filed in instant case. Husband filed Divorced Petition on wife’s adulterous act.
Bombay High Court while considering the facts that Husband and his entire family is working. Moreover, the child will be taken care by Maid. Whereas, Mother of the child is working but Child’s Maternal Grandmother resides with Mother of the Child. Both the parents are working is undisputed. Also, Husband’s Mother is a political figure and will also contest for Lok Sabha Election which will brutally impact on 9 Year Child. On Considering the Facts Bombay High Court in a case Abhishek Chavan v. Gauri Chavan held that Adulterous act is a ground for divorce and not to deny custody of child. Adulterous act of any Parent doesn’t define they can’t take care of their child and it doesn’t mean it is against ‘Welfare of the Child’. The Court thus held that adultery is a ground for Divorce and not for ground of refusing of Child’s Custody.
Who gets the custody of a child If Mother of a child is Financially Weak as Compare to Father of the Child?
Although the mother is financially weak it doesn’t mean the custody of a child will be given to Father just merely on a ground that Mother is earning less. Custody preferences are decided on the ground ‘’Welfare of Child’’ and not on financial condition of any of the Parent. In a case “Annapurnamma v. Ramakrishna” division bench of Andhra Pradesh directed husband to give interim-maintenance for the child as the Mother of the Child was financially weak.
Legislation governing Custody of a child under Different laws in India
Custody under Hindu Laws:
1.Sec 26 of the Hindu Marriage Act:
Sec 26 of the Hindu Marriage act define the maintenance, caring and education of the Child. Sec 26 of HMA can only be implemented when both the parents have faith in Hindu Religion.
2.Hindu Minority and Guardianship Act, 1956,
This Act provide the custody to Parent who believes in Hindu Religion
3.Custody Under Parsi Law:
The custody of a child under Parsi law deals with the provision mentioned in Guardians and Wards Act.
4.Custody under Christian law:
Christian religion needs to follow the laws and reforms set under sec 41 of Divorce Act, 1869 for the child custody. Also, in addition of this law sec 42 and sec 43 of the Act holds the same value to decide child’s custody. The child is to given to that Parent who is a better server for the child in terms of Education , mental and physical support.
5.Custody Under Muslim Law:
Under Muslim law only the Mother of the child can seek custody of her child as per Right Hizanat unless she is not found guilty of any miscounduct. The custody of child under Muslim law is with mother until the child attain the age of 7 years for boy and majority or attained puberty for a girl.
In the end, it is important for the parents to prioritize the well-being of their child and to work together to create a custody arrangement that meets the child’s needs. In some cases discussed above parents may be able to reach a custody agreement through mediation or negotiation outside the court. However, if parents are unable to reach an agreement , a judge may order a custody to any of the parents depending upon the evidence present in the court and as per Welfare of the child.
Overall the goal is to give child best well-being and without causing physical and mental harm to the child.
