At What Age Can a Child Decide Custody?

At What Age Can a Child Decide Custody

Child custody is a very delicate matter. As the kids have to digest the fact of their parents getting divorced even before getting completely familiar with the concept of marriage. Along with the married couple, children also have to witness the threshold leading up to the tragedy that will shape their personality. Therefore, the decision of child custody in India must be taken by a judge with wisdom after evaluating the situation. The child’s basic needs and comfort are more important than the wish of the parents. In India, preference is given to the parent with more capability of looking after the social, medical, educational and emotional needs of the child and given the custody of a child.

Some Factors Comprising Welfare of a Child

It has been outlined by the Hon’ble Supreme Court and other courts in India during the proceedings for custody, that the only matter to be taken into consideration is the well-being of the minor. The welfare of the child is a vast subject and can’t be limited to a few words. Although some of the factors that make up the prosperity of a child are:

  • Keeping the child healthy
  • Child’s ethical upbringing
  • Guaranteeing good education
  • Taking care of the financial needs
  • Assistance in mental harmony of the child

Who Gets The Custody Of The Child?

The child has to stay with the parent assigned the court till he or she reaches the perceptible age, irrespective of the claims of the couple. As per the Guardians and Wards Act 1890 (GAWA), once a child achieves the age of 9 years in India, his/her preference for custody is considered.

Variations of Custody of a Minor

Fundamentally, the courts in India can order the custody of a child in one or more of the following manners:

Physical Custody

This type of custody means that one of the parents is held responsible for the guardianship of the child with periodical visitation with the other parent. Such custody can ensure that the child is living in a fulfilling and safe environment and is receiving affection from both parents while growing up.

Joint Custody

The custody in which each parent gets custody in turns for a specific period. In other words, the child will live with a parent for a limited time like for certain days or a week or a month as mentioned by the court and then shift with the other parent for another term. This way each parent gets to be a part of their child’s life even after separation from their spouse.

Legal Custody

Legal custody doesn’t necessarily mean living with the child but grants permission to the parents to take every decision for the child. The parent with this custody decides the school where the child will study, the hospital for treatment of the child, etc. There are cases where divorce proceedings aren’t smooth and the parents disagree with each other in every matter. In those cases, the legal custody is granted by the court to either of the parents instead of both.


Although, a child is granted the privilege to choose between either of the parents at the age of 9 he or she still has to live with a legal guardian. Only after turning 18, they can choose to have their custody. Usually, in cases of minors, the court gives recognition to the need for maternal affection and importance is seized from other legal rights or preferential rights or any other law that obstructs the welfare of the child.