FAQs: Child Custody

Q. Are the father and mother both eligible to demand child custody?
A. Yes, any of the parents can demand it.

Q. If, after divorce, both parents do not want to take custody, what will happen?
A. A petition can be filed by any relative, grandparents, or anyone under the Guardianship and Wards Act, and the court will appoint further

Q. Can a father claim child custody?
A. Yes a father can claim but usually it is not given until the child is 5 years old.

Q. Are there judgments when minor child custody was given to the father?
A. Yes, there are many cases the famous ones are: Mridangra J Hira Lal Suchak V Neena M Suchak, Kala Aggarwal V Suraj Prakash Aggarwal

Q. What factors are taken into consideration when the custody decision is made?
A. The welfare of the child is the prime consideration

Q. Can custody of a child be claimed by the stepmother?
A. Yes

Q. Can custody be reclaimed?
A. Yes

Q. Is there a concept of joint custody after divorce in India?
A. Yes

Q. How are physical custody and legal custody different from one another?
A. Making decisions on the major aspects of a child's life falls under your purview if you are granted legal custody. The children's regular place of residence is referred to as physical custody.

Q. What is the meaning of the best interest of the child?
A. It means a decision that will ensure the best financial, physical and emotional aspects for the child.

Q. Is it possible for someone other than parents to have physical or legal custody?
A. Yes.

Q. What does child support mean?
A. Following the dissolution of a marriage or other relationship, a parent may continue to pay child support (also known as child maintenance) periodically for the financial benefit of the child (or parent, carer, guardian, or state).

Q. Can one parent stop the other if he stops paying child support?
A. No.

Q. Can one parent stop the children from meeting the other parent if he is not paying child support?
A. No.

Q. If one parent does not agree to the decision of custody, what can he do?
A. The other parent will be eligible to file a lawsuit against the decision.

Q. What is the procedure for a child custody case in family court?
A. It proceeds similarly to any other civil matter in that there is a petition, a reply, a cross-examination of the evidence, and concluding arguments.

Q. Can the non-custodial parent be denied visitation rights as well?
A. Yes, the court has the power to do so. The court may do so if it feels that this is not in favour of the welfare of the child.

Q. What is interim custody of a minor child?
A. When the decision or the order is pending, one parent is given temporary custody of the minor child this is called interim custody.

Q. Who has the power to decide the visitation schedule?
A. Usually, the decisions are taken by the judge or the mediator.

Q. If a couple is not married, who is eligible to get custody?
A. In such cases, usually the mother gets custody, though the welfare of the child is the first aspect. Though it depends on case to case

Q. Which law governs child custody?
A. Guardian and Wards Act.

Q. Can custody rights be altered?
A. Yes.

Q. Can the decision of custody be taken by the child?
A. The judge usually considers the child's wish but is not bound to do so.

Q. Who is a natural guardian?
A. A child's parents are considered their natural guardians. Legal custody with guardian rights may be awarded to one or both parents in a divorce. For a juvenile child, a natural guardian has the authority to make a variety of decisions.

Q. How are guardianship and custody different?
A. A parent's care for a child is referred to as custody, although someone who is not the child's biological parent is granted legal guardianship. A child may occasionally be partially under the custody of their parents but under the guardianship of an individual.

Q.In case the child is illegitimate who will be given the custody?
A. There is no such ground of legitimate or illegitimate in the court.

Q. Do fathers and mothers share the same custody rights? 
A. Yes.

Q. At what age can a child decide who they want to live with?
A. When the child attains majority, i.e., 18 years.

Q. Is there a difference between having primary physical custody and sole custody?
A. Yes, in the case of primary physical custody, both parents will have the power to make decisions for the child, even though the child mostly lives with one parent. On the other hand, in the case of sole custody, the decision-making power is only with one parent, and they only have the legal and physical custody of the child.

Q. In cases of 50-50 custody, who will be the custodial parents?
A. All such decisions are taken by the court beforehand.

Q. What kind of custody is most suitable for a child?
A. Shared custody as it helps the child to have both parents.

Q. Whether an Indian couple who is currently living in the US want to pursue custodial rights under US law?
A. Yes.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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