Are You Facing A Child Custody Dispute? Understand The Legal Process

Introduction

Are you getting worried about well-being and proper upbringing of your child? Or do you have fear of losing your visitation rights for your child? Are you unaware of the legal rights as guardian of your child? It is important to be aware about the child custody laws so that your legal rights are protected as a guardian.

Child Custody is a type of guardianship which depicts the legal and physical relationship of a child with their parents or the guardian. It is the legal custody which grants the parents or the guardian right to take decisions about the child.

This guide will make you understand the type of custody, legal procedure to claim child custody, and responsibility of parents. This will ensure the proper and smooth procedure for safety, growth and emotional needs of child.

What are the different types of child custody in India?

1. Physical Custody: It implies that the child will be under the guardianship of the parent to whom the physical custody is granted and the other parent is given the right to visit and meet the child. In this way the child gets the benefits of both the parents. This way the child is not deprived of the love and affection of the parents.

2. Joint Custody: In this case custody rights are vested in both parents allowing keeping the child in turn. It is not necessary for the separated couple to share the same roof. Custodial rights cannot be mixed with access rights. This way no parents’ feels deprived of the child and the child also gets affection from both parents. The movement of the child among parents may vary from a certain number of days, weeks or months.

3. Legal Custody: Parents are granted legal custody of the child i.e. both parents can decide about the child’s education, medical treatment or any other requirement. On the contrary, certain parents do not agree with this custody as they cannot agree mutually to things, in that scenario the court grants the legal custody to any of the parents.

4. Third Party Custody: In this type of custody, rights lie with neither of the biological parents because the court feels that either of the parents is not capable enough to raise the child and the well- being of the child cannot be taken care of and is not beneficial for the child. Any person who is in any way related to the parents is given the guardianship of the child by the court.

5. Sole Custody: This is the scenario where only one biological parent is given the right to be the guardian of the child and the other parent is kept completely away from the child due to a history of abusive behavior or for whatever reason.

Which parent is given priority while granting child custody?

Basically, the court automatically does not grant and prioritize either parent. Instead, the foremost concern is the best interest and welfare of child. The court also considers the same fact while deciding the custody of child.

What if child is below 5 years of age?

According to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 the custody of minor child below 5 year of age is usually granted to the mother irrespective of the gender, as court assumes that she is fit to take proper care of child. In case, if the mother founds to be unfit to take care of child then court considers the best interest of child with respect to better standard of living.

Who gets the custody of an older child?

The mother is not given priority in case of older child, instead welfare and best interests of the child remain the deciding factor. The court presumes that when child reaches the major age, he or she is mature enough to take decision. Mainly, the court grant custody to the parent who has strong emotional bond, effective earning, good moral upbringing and providing safe living environment to the child.

Which court should you approach for child custody?

In India the disputes related to child custody matters are resolved by District or family court of the place where the child ordinarily resides.

Can custody be decided along with divorce?

In case if there is ongoing divorce case before family court then, either parent can file custody petition under the Guardians and Wards Act, 1890 or relevant personal laws in the same family court under:

• Section 26 of Hindu Marriage Act, 1955 If both the parents are Hindu by religion then the court is authorized to pass the order related to custody, maintenance and education of minor child.

• Section 38 of Special Marriage Act, 1954 This law is applicable when both the parents have different religion.

The court gives the final judgement by keeping the welfare of child as priority.

What documents are required to file a child custody case?

• Birth certificate of child as age proof

• Marriage certificate of parents as proof of relationship between the parents

• Address proof of the petitioner and the child

• Identity proof (Aadhaar, PAN, etc.)

• Photographs of the child and parents

• Proof of schooling, medical records, and expenses

• Any previous court orders, if applicable

• Evidence showing the financial and emotional capability to take care of the child

Are you being denied the right to meet your child?

In case if you have the visitation right as a parent when physical custody is granted to other parent, you have right to make a regular meeting, connections, and involvement with child.

These type of visitation right includes, weekend meeting, school holidays, occasional meeting and video calls access. This rights are enforced to protect the emotional bond of child with non-custodial parent and these rights are pursed unless there such meeting is harmful for child.

What if the custodial parent blocks access to the child?

Custodial parent cannot dent the meeting of child with non-custodial parent, if he/she has visitation right, it is unlawful.  

If non-custodial parent faces such circumstances, then then aggrieved parent can file execution petition in same family court. The court can order strict orders and directions, impose penalties on custodial parent. In some situations, the court may transfer the custody rights is such hurdles affects the emotional well-being of child.

Can child custody order be changed later?

The order of child custody can be changed or modified by the family court only if there is change in living condition of child which affects the well-being of child. In simple words, the court can modify the child custody order in case if previous order no longer serves the best interest of child.

Either parent can file modification petition in same family court under Guardians and Wards Act, 1890to request for change in custody orders. The court can modify under following circumstances:

• If either parent has changed the location for living

• If there is change in financial living condition of custodial parent

• If health and safety of child is being affected

• If custodial parent is neglecting the child and unable to take proper care of child.

• If there is own wish of child and he/she become mature enough to express a preference.

The court basically protects the safety, emotional development and health of child.

What if one parent takes the child abroad without consent?

If either parent takes the child abroad without consent, is considered violation of custody orders and contempt of court. This can also be treated as criminal offence performed by that parent. Legal step you can take:

• Step: 1 File a Police Complaint: You should immediately file a complaint with the police for kidnapping under Criminal law if child has been taken to abroad without your consent.

• Step: 2 Approach a court: You must file an urgent application in the same family court to seek custody and return of a child

• Step: 3 File a petition in High Court: You can also file a writ petition of Habeas Corpus before High Court by seeking immediate return of child.

• Step: 4 Seek a Travel Restraint Order: The court can prevent the other parent to travel further and direct the various authority to suspend the passport of child. The court may also grant Look Out Circulars (LOC) in urgent cases.

Moreover, you can also seek international legal remedies. India is not a signatory to Hague convention but still the welfare of child is considered foremost concern so India courts can coordinate with foreign embassies for securely return of child to India.

How Lead India can help you?

1. Trustworthy & Confidential: We ensure that all your personal details, documents, and child-related information are kept strictly private and never shared without your consent.

2. Expert Legal Guidance: Our experienced family law professionals provide accurate advice under the Guardians and Wards Act, 1890 and other applicable laws to protect your parental rights.

3. Zero Stress Process: You do not have to worry about court filings, documentation, or procedures. Our legal associates handle everything on your behalf smoothly and efficiently.

4. Top Quality Family Lawyers: We connects you with the best child custody and family law advocates based on their expertise, experience, and client ratings, ensuring strong legal representation.