Family Law Videos - Child custody rights of a father before divorce

Over the years, there is a shift from custody and access being the 'right of a parent' to being the 'right of a child'. 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.

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. Custody can be divided up into two parts, legal custody, and physical custody. Legal custody means that the parent has the ability to make the major decisions about the child's health, education, safety, and welfare. Physical custody refers to which parent the child lives with. Some of the factors that are considered when the court makes a custody determination are: 
• emotional and physical environment; 
• the personal safety of the child; 
• moral atmosphere of the household; 
• the mental and physical health of the parents; 
• the age of the children; 
• preference of the child; 
• the prior behavior of the parents, including any history of abuse; 
• the ability of each parent to care for the child; 
• and the importance of religious upbringing within the family.

In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent. At present, courts in India award a minor's custody to one parent or the other depending on who they think will ensure the child's welfare, though the legal position is different in Hindu law, which considers the father the natural guardian, and other secular laws, which consider the mother the natural guardian of a child. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.''

Also if the child involved is an infant, the courts tend to grant the custody of the child to the mother. For children under 5 years of age, the law recognizes that the natural guardian will be the mother. The Custody orders by their nature are interlocutory and can be modified if there are a change of circumstances which require a change in custody. The Courts have also granted custody of the child to his grandparents or other relatives even if the natural guardian was alive at that time. In all these cases what is common is that "best interest and welfare of the child" is the criterion on which such decisions are made.