Child Custody

Child Custody Laws in India

Child Custody refers to the process through which a parent is granted the rights of the child over the other parent during or after the divorce or in a case of judicial separation. Under the Indian law, the Guardians and Wards Act of 1890 governs the rules related to custody of the child for parents disputing over custody after divorce. The regulations and remedies for custodial issues invariably fall within the ambit of this Act, irrespective of the religion of the parents. However, India being a country of diverse religious demography, has personal laws governing various issues among different religions. Following are some laws that govern child custody under different religions:

  1. Custody under Hindu Law: Laws related to custody under Hindu laws are governed under the Hindu Marriage Act that deals with interim orders, judgments, amendment, etc. related to maintenance of a child and Hindu Minority and Guardianship Act that deals rights to seek custody of a minor child.

  2. Custody under Muslim Law: The custody of a minor child under the Muslim Shariat law is called “hizanat” which literally means the care of an infant. As per this law, the father is considered the natural guardian of his children irrespective of sex, however, the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty.

  3. Custody under Christian Law: The laws related to custody, education and maintenance of the Christian children are governed under the Indian Divorce Act.


Types of Custody

In a child custody case the following types of custody can be avoided by a court:

  • Physical Custody- When the court declares either of the parent to be the custodial parent and the child lives with them then onwards.

  • Joint Custody- When both the parents come to an agreement on taking care of the child and the legal custody lies with both but the physical custody is taken over by one of the parents who is the primary caretaker of the child.

  • Legal Custody- When the decision making for important decisions of the child such as educational and religious upbringing, financial support and medical care is generally shared among the parents and the expenses of the child are borne by both of them.


Custody of a Child

As stated above, the custody of the child varies as per the personal laws, however, the main intent of the court while deciding the custody of a child is the welfare and the best interest of the child. Thus, if the court is of the view that the best interest of the child lies not being in the custody of either of the parents then the court can give the custody of the child to a third person as well.

  • Custody of a child below 5 years

Usually, where the minor child is below the age of 5 years, the custody is granted to the mother. However, in some cases, if the court feels that the mother is unfit to take care of the child it would decide upon the custody exercising its discretion based on the circumstances of the case.

  • Custody of a child above 5 years

Custody of a child above 5 years of age is decided by the court based on the facts and circumstances of the case. The most important point of consideration while deciding the custody of a minor child is the welfare and the best interest of the child. The court while deciding the custody wants to make sure that the child will not be treated as a chattel.

Child Custody under Mutual Divorce

When a couple is separating through a mutual divorce, they have to decide regarding the custody of the child among themselves. They have to determine beforehand about who gets the physical custody and who gets the visitation rights. They can also go for joint custody or shared parenting of the child in case of mutual divorce. While deciding about the custody the parents have to apply the principle of the best interest of the child and the agreement between the parents must be subject to the best interest of the child.

Custody of a Child under Contested Divorce

In case of a contested divorce, the decision regarding the custody of the child becomes a matter of the court to decide. The court decides the custody taking into consideration the best interest of the child. The decision of the court on the custodial rights also depends upon the facts and circumstances of the case along with the welfare of the child in case of a contested divorce.

How to File for Child Custody?

The procedure to file a case for child custody has been listed below:

  1. Drafting the Application: An application has to be drafted by the concerned party with the help of a child custody lawyer stating the reason as to why the custody of the child should be granted to the applicant.

  2. Filing the Application: The application has to be filed in a District Court having jurisdiction over to hear the matter.

  3. Appearance: After the application has been filed the hold a hearing where both the parties will appear and would present their case.

  4. Final order: Once the final arguments of both the parties are heard the court will decide upon the matter.


Grounds under which Child Custody is denied

There are several reasons on which the court denies child custody. Some of them are as follows:

  1. Parent not in custody is not paying child support

  2. Child abuse

  3. Drug or alcohol abuse

  4. Violent mental illness

  5. Incarceration

  6. Wish of the child


Duration of a Child Custody case

In case of mutual divorce, an application moved for child custody would be decided within 6-8 months from the date of filing of the application. However, in case an application for child custody has been moved in a matter of contested divorce then a fixed time cannot be told as it could take a minimum of 2.5 to 3 years to grant custody.

Maintenance of the Child after Custody

Once the custody of the child has been granted to one of the parents and the divorce proceedings are over, it is the duty of the parent to maintain the child and act in the best interests of the child. Unless exceptional circumstances have been called for one parent to exclusively provide maintenance of the child, both the parents will be required to maintain the child. However, in such a case the other parent will not be precluded from being a part of the child’s life. The maintenance court will have the right to decide upon any disagreement between the parents with regard to the maintenance.

Visitation Rights

Yet another point of dispute when you are getting a divorce is visitation rights. Visitation rights, in general, is the right to meet one’s child after custody has been granted to the other parent after divorce. It refers to the parenting of the parent, i.e. the amount of time a parent spends with a child.

What to do if Visitation Rights are denied?

In case a non-custodial parent is denied his or her rights to visit their child time and again, it is important that the denial is documented by the parent. A good way to document a denial of visitation rights is to file a police complaint. Filing a police complaint will ensure that the non-custodial parent has proof of the denial when the matter goes to the court, and will also show the court that the non-custodial parent takes the denial of these rights seriously.

A custodial parent who denies the non-custodial parent his or her visitation rights may be held in contempt of court, and be fined and/or jailed. If the custodial parent has been found to be in contempt of court, the court may also choose to adjust the custody arrangement to make it more favorable to the non-custodial parent by either giving them more visitation rights or giving them full custody of the child.


Need for a Lawyer in a Child Custody case

A case of child custody is an emotionally and financially draining time for a parent. Therefore, it is pertinent to have a lawyer by your side when you are dealing with an issue of child custody. An expert child custody lawyer can help you perform the following functions:

  1. Drafting the application

  2. Filing the application on your behalf

  3. Representing you in the court

  4. Preparing arguments

  5. Helping you prepare yourself with the cross-examinations

  6. Taking care of the paperwork

  7. Making a plan of action

  8. Guiding you with the complicated court procedures.

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The Hindu Adoptions and Maintenance Act, 1956

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The Guardians And Wards Act, 1890