Contested divorce,file custody or not ?

938 votes

If the child has been kept away for several years, you can consider filing an interim custody/visitation application under Section 26 of the HMA in the pending divorce case, instead of waiting for the divorce to finish. A separate petition under the Guardians act can also be considered if permanent custody needs to be decided independently, depending on the facts and jurisdiction. Filing a custody application will not automatically delay the divorce case; you can request the Court to hear the visitation issue separately and continue the divorce proceedings simultaneously. There is no fixed time from cross-examination to final judgment, as it depends on evidence, arguments, adjournments and the court's schedule. In the meantime, the Court can grant interim visitation, video calls, weekend access or holiday visitation based on the welfare of the child, so you need not necessarily wait until the divorce case is finally decided. I hope this suggestion will be helpful for you.

Advocate Raj Kumar LawRato

685 votes

Custody and visitation should be pursued without unnecessarily delaying the pending divorce proceedings. Depending on the facts and existing pleadings, custody/visitation can be sought under Section 26 of the Hindu Marriage Act or through appropriate proceedings under the Guardians and Wards Act, 1890. If the child has been kept away for years, seek interim custody/structured visitation at the earliest, rather than waiting for the divorce to conclude. The court will primarily consider the welfare and best interests of the child. The exact procedure and likely timeline depend on the existing case stage, evidence and circumstances.

Advocate Pavani Kumari LawRato