Kids want to stay with me. If husband files custody, who will get them

968 votes

Guardian and wards card are empowered to determine the issue of child custody.
1. Permanent Custody
2. Interim Custody
3. Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favour of one spouse as against the other is WELAFRE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no wayprejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.

The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. Who will best serve the child's emotional, educational, social and medical needs is the only criteria. The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does.

In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child's convenience, could include the non-custodial parent's right to school events, etc

So in your case, you can form the case accordingly the principles that the custody of the child is good when they stay with you.

Advocate Ajay NS LawRato

832 votes

Each case will be decided on its own merits. The welfare of the minor is the only consideration. But wish and welfare are distinguished. Sentiments of the parents have no consideration at all. please feel free to ask if any further clarification is needed. The court will interact with the children if necessary.

Advocate George Varghese LawRato

658 votes

In granting custody of children, primary importance is the welfare of the Child/children. In the present case, given the age of the children and their stated disinclination to go with the father, the decision, in all probability, is bound to be in favour of the mother.

Advocate P Venu LawRato