Legal Custody of children during divorce and legal separation is a very serious issue in India. According to Hindu Law, the family court refers to Child Custody as the guardianship of children under the age 18.
Custody of a child can be categorized into two,
- Physical Custody
- Legal Custody
In almost all cases, both parents are entitled to Legal custody where as Physical custody is permitted to only one parent. The decision is granted by the court considering the child’s best interest. Legal custody allows the parents to take decisions on child’s behalf relating to his welfare such as religious practices, insurance claims, and medical treatment and to some extend schooling and education.
Physical Custody is granted to the parent who is more capable financially, has more securities and knows better parenting skills, and whose presence is harmonious for the child. He is majorly responsible for the growth of the child, his schooling and education, his food and shelter, his behaviour and fulfilling other needs.
A father can be both legal and physical custodian provided he meets all the judicial conditions. But he can also acquire the custody of the child from his separated wife judicially affecting to certain grounds such as;
- If the child is above 12 years, he has the right to choose to live with his father and entitle him with the Physical rights.
- If the mother is physically ill and is unable to take care of the child
- If the mother has adhered to mental sickness or disorder and is causing disrupt in the child’s life.
- If the mother’s vocational habits such as drinking and smoking is affecting the child.
- If the child is not getting the quality of life the mother promised to provide such as good education, medical facilities etc. If the mother is incapable financially to support the child.
- If the mother has remarried and the husband is not treating the child well
The father has to appoint an attorney and through him should proof one or more or all of the above grounds to be valid to attain the custody of his child.
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