Age of child 5 years father not ready to give up custody what to do

115 votes

As per law, if the child's age is less than 5 years, the mother can claim for physical custody and the father can have visitation rights. But after the child has crossed the age of 5 years, the physical custody and upbringing of the child will be considered by the court. So, if the child is in the father's custody then you can file a case under the Guardian and Wards Act seeking custody of the child if the father denies you for the same.

A parent can claim the custody of the child under Section 7 and 17 of the guardianship Act and under section 12 of the Hindu Minority Act. 

Section 17 in the Guardians and Wards Act, 1890 is mentioned below for your understanding:
"Matters to be considered by the Court in appointing guardian.—
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this sec­tion, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a de­ceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will.
In most of the cases the Visitation Rights are awarded by the court to the parent to visit the child."

But in some cases, the court can decline the visitation rights as well if the court can be reasonably convinced that visiting the child by the other parent will have any ill effects to the well being and growth of the child.
 

Taking help of a lawyer

A case of child custody is a difficult time to deal with both financially and emotionally. Irrespective of the type of divorce you are going through (i.e. mutual or contested divorce), it is crucial to have an experienced lawyer by your side to guide you when it comes to child custody. A child custody case is a sensitive issue and in order win the custody battle it is important that you have a proper plan. An experienced child custody lawyer can help you make an effective strategy for your case and can help you execute it efficiently. He can also represent you in the case and can ensure that you have greater chances of having a favorable order.
 

How to get custody of the child?

In a custody case, the point of consideration of paramount importance is the welfare of the child. No other right, legal or preferential, holds more importance than the welfare of the child. The court also grants custody to the party who can make the court believe that the well-being of the child lies best with him/her. Thus, it is important to prove that you are more eligible than the other party to provide better upbringing to the child in a custody case.

LawRato LawRato

69 votes

According to the Hindu Minority and Guardianship Act, the natural guardian of a minor who has not completed the age of 5 is the mother. 

Custody of a child can be claimed under Section 7 and 17 of the Guardians and Wards Act. While deciding custody matters, the welfare of the child is of paramount importance. If the father is negatively affecting the child and is unwilling to give up the custody of the minor child, it is important to consult a lawyer. 

In order to guide you better, it is necessary to understand the facts and circumstances of your case in detail. For further information and help, you can read more on laws related to child custody or connect with me.

Advocate Chikirsha Mohanty LawRato