Child Custody Laws After Divorce in India

हिंदी में पढ़ें
June 19, 2019
By Advocate Chikirsha Mohanty



Child custody is a process through which one parent is granted rights of the child over another during or after the divorce or in cases of judicial separation.

Child Custody is filed during or after the divorce proceedings or in the case of judicial separation. This is one way through which the court decides who should get the custody of the child. The laws regarding who should get the custody varies as per the personal laws but the main intention behind the custody is always the same i.e., welfare and best the interest of the child. At times, if the court feels it is in the best interest of the child not to be in the custody of both/either of the parents then the court can give his/her custody to a third person as well.
 

Consult : Top Child Custody Lawyers in India

 

Child Custody in Mutual Divorce

In the cases of mutual divorce, the parents have to decide amongst themselves regarding the custody of the child. They have to decide over who gets the custodial rights and who gets the visitation rights. Parents can also go for joint custody or shared parenting in a mutual divorce. They have to decide regarding the schedule, holidays, visiting hours etc. The principle of best interest of the child has to be applied. The agreement between the parents must be subject to the welfare of the child.
 

Child Custody in Contested Divorce

During a contested divorce proceeding, the issue concerning child custody becomes a matter for the court to decide. The court takes the best interest of the child into account while deciding the custodial rights. The court will decide on the basis of circumstances of every case and for the welfare of the child.

The court considers the following aspects while deciding guardianship:

  1. The personal law to which the minor is subjected to.

  2. The age, sex and religion of the minor.

  3. The character and capacity of the proposed guardian and his nearness of kin to the minor.

  4. The wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

  5. If the minor is old enough to form an intelligent preference, the court may consider that preference.

  6. The court shall not appoint or declare any person to be a guardian against his/her will.

  7. The courts prefer to keep children together and award custody of both together when the issue of custody involves two or more siblings.

  8. The child’s comfort, health, material, intellectual, moral and spiritual welfare.
     

    Consult : Top Child Custody Lawyers in India
     

Reasons to Deny Child Custody

Parents in a divorce cannot deny each other the custody of the child or the visitation rights. It is on the discretion of the court that custody rights are denied to certain parent(s) when the court assumes that is for the best interest of the child. There are several reasons through which the court denies child custody. Some examples are-

  • Non-custodial parent not paying child support

  • Drug or alcohol abuse

  • Child abuse 

  • Incarceration

  • Violent mental illness

  • Child’s wishes

 

What are the Requirements to File for Child Custody? 

You should take the help of a child custody lawyer while filing for child custody. However, there are certain set requirements in order to file for it:

  1.  It is filed during or after the divorce proceedings or in case of judicial separation.

  2. The child should be less than 18 years old in order to be eligible for the custody.

  3. The person of unsound mind can also be given for the custody.

  4. One should have legal right for custody.

 

How to File for Child Custody; The Process

The process of filing for child custody can be divided into the following -

  1. Drafting the Application: - An application is to be drafted with the help of a child custody lawyer during or after the divorce proceedings which must include the reasons as to why the custody of the child should be given to the concerned applicant.

  2. Filing the Application: - This application should be filed in the District Court of the appropriate jurisdiction.

  3. Hearing: - Once the application is filed, there will be a proper hearing in the court where both the parties will be given an opportunity to present their point of view.

  4. Court decision: - After hearing both the parties a final decision is taken by the court.
     

Where to File for Child Custody?

According to Sec 9 of Guardians and Wards Act, 1890, the application with respect to the guardianship of a minor person will be filed in the District Court which has authority over the area where the minor is residing.
 

Who can File?

The criteria for filing for child custody differs from various laws such as:-


Hindu Law & Christian Law

  1. Father

  2. Mother

  3. Grandparents both maternal and paternal

 

Muslim Law

  1. Mother

  2. Father

  3. The other relations apart from the parents who can claim the custody of a child are:

  • Nearest paternal grandfather

  • Full brother

  • Consanguine brother

  • Full brother’s son

  • Consanguine brother’s son

  • Full of the father

  • Consanguine of the father

  • Father’s full brother’s son

  • Maternal grandmother

  • Maternal great-grandmother

  • Maternal aunt and great aunt

  • Full sister

  • Consanguine sister

  • Uterine sister

  • Paternal aunt

 

What are the Documents Required? 

Documents required to file for child custody case are given below:-

  • Valid ID proofs such as PAN card, Aadhaar card, driver’s license, passport, etc.

  • Birth Certificate

  • Divorce Decree or marriage certificate

  • Passport size photo of the child

 

Consult : Top Child Custody Lawyers in India
 

Duration of the Process

If an application for child custody is moved in the situation of mutual divorce, then, in that condition it could be decided within 6- 8 months from the date of filing of the application. But, if the application is moved in the case of contested divorce then there is no fixed time period to grant the custody and it could take minimum of 2.5 – 3 yrs.
 

What are the Different Types of Child Custody?

In the case of child custody, there are different kinds of custody that can be awarded by the Indian courts to parents:

  1. Physical custody of the child – The physical custody of the child means that the child shall stay with the parent who is granted the physical custody while the other parent will be granted with visitation rights. The parent who has the physical custody is usually the primary guardian.

  2. Legal custody of the child – In legal custody, the parents have the right to make important decisions regarding educational and religious upbringing, financial support and medical care that affect the welfare of the child. This decision making is generally shared among parents and the expenses and maintenance are borne by both the parents.

  3. Joint custody of the child – In the case of joint custody both parents have equal physical and legal custody. Though there are no legal provisions on this but the judiciary has been taking steps to bring about joint custody in India. Through this, children can get the benefit of having both parents as active members in their life, thus, doing away with the concept of primary guardianship.
     

Child Custody as per Hindu Law 

The custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956. This law is also applicable to Jains, Buddhists and the Sikhs as they are also included under the definition of Hindu.

  • As per Sec 6 of the Hindu Minority and Guardianship Act, 1956, a Hindu child below the age of 5 years shall be kept under the custody of the mother as at this age it is only the mother who can give proper emotional, moral as well as physical support to the child.

  • The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death the custody shall be given to the mother.

  • In case the child is illegitimate then the custody shall be with the mother itself.

  • A third person can also be given the custody of the child if the parents are not willing to take the custody of the child or if the court thinks it is in the welfare of the child that he/she stays away from the parents. In this case usually, the grandparents (paternal or maternal), will be preferred to get the custody of that Hindu child if they are interested.

  • If neither the parents nor any of the close relatives of the child are initiating to take the custody of the child, then the court by itself shall find an appropriate person who could take the custody of the child.

 

Child Custody as per Muslim Law

Under Muslim personal law, the right to a child’s custody is called “hizanat” and can be enforced against any person including the father.

  • The custody of a Muslim child is with the mother until he has attained the age of 7 years for a boy and until she has attained the age of majority or puberty in case of a girl.

  • The custody of a boy after he has attained the age of 7 years and the girl after she has attained majority or puberty is with the father, as under the Muslim law, it is the father who is considered to be the natural guardian of the child.

The right given to the mother in case of child custody is not absolute and exists only if such right is beneficial and is in the interest of her children. Thus, the welfare of the children is at the forefront of Muslim law as well.

 

Child Custody as per Christian Laws

As per Section 41 of Indian Divorce Act, 1869, the courts have rights to take decision regarding the custody, education and maintenance of the Christian children. It is up to the discretion of the court keeping in mind the welfare and best interest of the child. The court can even deny the custody to both the parents if they are unable to give proper opportunity to the child to grow both mentally and physically.

 

Other Basics/Considerations for Child Custody


Child Custody before 5 years

Generally, the custody of a child below the age of 5 is given to the mother. However, in certain circumstances, where the mother is proving to be an unfit parent, the court shows discretion while granting custody. However, according to the law commission report (no.257), equal rights are granted to parents while assuming custody. This is in Hindu law. Under Muslim law, The custody of a child is with the mother until he has attained the age of 7 years for a boy and until she has attained the age of majority or puberty in case of a girl.
 

Fathers Right in Child Custody

Fathers have equal rights as the mothers while obtaining the custody of the child. Earlier, mothers are given more preference while granting custodial rights. However, with the changing mindset, the court grants equal rights to both parents.

The visitation rights of unmarried fathers often depends on their relationship with the child, any history of child abuse, drug and alcohol use, and other such factors.

While court recognizes the visitation rights, mothers are still preferred for granting custody. To get the custody of a child, an unmarried father would likely need to show that the mother is unfit to raise the child and/or that he has been the child's primary caregiver.

 

Mothers Right is Child Custody

Initially the mother had the primary custodial rights over the child. However, for the court to grant mother the custodial rights, she must present herself as a fit parent.

 

How can a Guardian get Child Custody?

Non-parent custody is granted only under certain circumstances and through specific procedures. The court only grants custody to a non parent when it is satisfied that the child will not be harmed and it is for the best interest of the child. There are two primary ways to file for custody of a child that is biologically not your own: 1) guardianship, and 2) non-parent custody.

The first method is through guardianship, i.e. parents give written consent to non-parents to give them the custody of the child. Consent guardianship is not possible if one parent disagrees to it.

The second method is granting non parent custody.  In this case, the non-parents file in the appropriate court where the child currently or permanently resides. To grant Non parent custody, the court must be satisfied -

  • That they have a long-standing relationship with the child, and are fully capable of substituting for the parents in caring for the child.

  • That it would be in the interest of the child’s welfare to give his/her custody to the non parent, and also that it would prove to be detrimental to the child if he/she were left with the original parent(s) willing to retain the custody.

  • That the court has not made a custody determination within one year of the filing,

  • That one of the following criteria applies:

  1. One of the child's legal parents is deceased.

  2. The child's parents are not married at the time of the filing.

  3. The child's parents are legally separated or are divorcing at the time of the filing.
     

How to get sole custody of your kids?

Sole custody differs from joint custody. It refers to the full custody granted of a child to one parent. It includes both legal and physical custody. In sole custody, the parent gets both the physical custody and legal rights towards the child.

Typically, the court will agree to grant visitation rights to the other parents, unless such action does not serve the best interests of the child.
Factors Considered while granting sole custody:

  • Best Interest of the child

  • Documentation

  • Conduct in the court

  • Detrimental to grant joint custody due to the other parent

 

‘Child Maintenance after Custody’

After the custody  is granted and the divorce proceedings is over. It is the duty of parents to maintain the child and act on towards the best interest of the children. The duty to support the child rests on both parents, unless exceptional circumstances call for one parent to exclusively provide maintenance. However, this does not preclude the other parent from being a part of the child’s life. Where the parents are in disagreement with each other, the Maintenance Court has the right to settle the dispute.

 

What if a spouse denies to pay child maintenance?

In cases where the spouse denies paying the child maintenance, then visitation or custodial rights can be taken away. Further,

  • If the child support is set up in a contractual agreement, the basic remedy is suit for breach of the contract; the other parent can sue for breach.

  • If child support is payable under a court order, the order is enforceable through the contempt powers of the court.

 

Consult : Top Child Custody Lawyers in India
 

The Courts on Child Custody

  • The Supreme Court in one its case held that second marriage is not a ground to deny the father the custody of his children. In this case, the parents took a mutual divorce and the parties were at liberty to re-marry. However, later, the mother of the child filed for denying custody to father on grounds that his second wife was also cohabiting with the father and son.  The Supreme Court stated that the second marriage cannot be put against the father as it is not affecting the child negatively

  • The Supreme Court in another case gave the judgment regarding giving the custody of the child to an institution. The court held that “the handing over of custody of child to an institution, while ignoring the claim of a parent, especially the mother of the child, is not acceptable”.

  • The Supreme Court in another case in 2008 held that the ‘controlling factor deciding the custody of child must be based on the welfare and best interest of the child and not the rights of the parents’.

 

Latest News on Child Support

  • In May 2015, the court held that paying for child support can be extended up to the age of 25 of the child. The law Commission on 22nd May 2015, also submitted a draft law that provides for welfare of children as paramount importance.

  • In May 2019 a petition was filed before the Supreme Court by the NGO Child Rights Foundation, regarding joint parenting plan. In this form, both the parents get equal custody of child. This is introduced to reduce the trauma of divorce amongst the children

 

Do’s and Don’ts of Child Custody

The parent trying to win the custody of the child must present themselves properly in the court and must follow certain Dos and DON’Ts in the court-

  • Do show a willingness to work with your ex wife/husband.

  • Do exercise your parental rights.

  • Do request an in-home custody evaluation. 

  • Do be aware that perception is everything. 

  • Do teach yourself about family law. 

  • Do prepare documentation.

  • Do work with an experienced child custody lawyer.

  • Don't talk about your ex-wife/husband negatively to your kids. 

  • Don't make a habit of rescheduling time with your kids.

  • Don't abuse alcohol or drugs, especially when you're with your kids.Don't refuse to do anything the court is asking of you

  • Don't involve your children in the court case.Don't invent negative stories in an attempt to win custody. 

  • Most importantly, have genuine care and concern for your children. 
     

How to cope during child custody case

Child custody cases are usually very tiresome and emotionally draining. The whole process of divorce proceedings and child custody requires the person to remain strong and proactive. There are certain actions that must be observed by the divorcing parents-

  • Make an informed choice about your counsel and listen to what they say

  • The parent must be proactive and not reacting to situations

  • Their future along with the child’s future must be kept in mind while taking any action.

  • Get feedback and maintain communication with other people.

  • Talk to parents who are going through similar situations.

  • The person must remain calm and composite during such times.

  • Do not handle your own case without a lawyer

 

Consult : Top Child Custody Lawyers in India


FAQS

Does an Unmarried Mother Need to File for Custody?

An unmarried mother is automatically considered as the guardian of the child and hence does not have to apply for child custody separately.


Can a father take the custody of a child from a mother?

Mostly the custody of the child is given to the mother but in certain circumstances if the court thinks that it is in the best interest of the child to stay with the father in that condition the custody can be given to the father.


What is the age limit for child custody?

The child needs to be less than 18 year olds in order to be given for the custody.


What is the difference between child custody and visitation rights?

Child visitation refers to parenting time. That is, the amount of time one parent spends with a child. While in the case of child custody the child stays with the parent and gets the right to make decisions regarding a child's health, education, and welfare.


How to file for Child Custody from Foreign Land?

In a matter, Supreme Court held that the ‘jurisdiction of Indian Courts is not limited in Child Custody Cases’. This means that in child custody cases, a spouse can also file from a foreign land and will not be stopped by the courts.


How to get Child custody if the husband/wife is irresponsible?

If one spouse is irresponsible or proving to be a detriment towards the child, the custody can be denied by the court. The other spouse has to then prove in court that the other spouse is an unfit parent.


What happens when both parents deny custody?

In the circumstances where both the parents deny the custody of the child, the custodial rights are shifted to a guardian or a non-parent. If there is no guardian, then court shall appoint such guardian or non parent who shall assume the custody of the child.


How do I know that the amount of the child support order is fair?

The law aims to keep the amount of child support fare and satisfactory to the needs of the child. There are several factors that are taken into account while deciding the fair amount of child support such as income of both parents, the cost of the child's daycare and health insurance, each parent's other child support obligations, and the age and number of children etc. On this basis the court can decide the fair amount of child support.


What are the property rights of Children after divorce?

A child is entitled to the share in the ancestral property inherited by his father. A divorce between the father and mother does not deprive the child of his/her inheritance rights. However, it is advisable that it is mentioned in the agreement before-hand.


Consult : Top Child Custody Lawyers in India



 

These guides are not legal advice, nor a substitute for a lawyer
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