The matter of child custody, usually turns up during divorce proceedings of a couple. It becomes an important matter to discuss and decide upon the custodial rights and obligations of children during this. It becomes duty of courts to decide upon this and impart correct decision that is in favour of child’s well being and holistic growth. Custody refers to the practice of taking care and maintaining children who are below the age of 18 years. It is one of the most important duties that clearly decides the future of children and the level of growth, stability and education they will be receiving in the future. This is the reason why court decides upon such matters after detailed analysis and reasonable care. Either of the parent who receives the custodial rights of child after divorce or any other case, get the complete right of decision on matters of nurturing the child, educational needs, holistic development, medical and physical well being of child and other important decisions of his life. However, the non custodial parent’s rights limit to meeting the child and accessing the child with the consent of the custodial parent. There are several cases in which both the parents are often provided with the access to their children, however the physical custody confines to just one parent. Legal custody refers to the right that grant decision making authority to the parent, in favour of the child. They get the right of deciding upon their child’s education, medical facilities and associated care, religious thought processes and upbringing of the child, with the financial decisions and other associated decisions of child’s life.
Laws in India
Indian laws recognise several kinds of custody such as
- Physical Custody,
- Joint Physical Custody,
- Sole custody of the child and
- third party custody of the child.
We have regulations such as the Hindu Minority and Guardianship Act, 1956 that highlights the very regulations related to the custody rights and other related issues. As per the laws, the Hindu child who is of age 5 years or below, shall be kept under the custody of his or her mother, until he attains the age of reasonable understanding because till the age of 5 years, only mother can give proper care to her child, with reasonable health and other well being of the child.
Laws in India that regulate child custody in general are
- Guardians and Wards Act, 1890
- Hindu Minority and Guardianship Act, 1956
When it comes to the custody of unmarried girl below the age of 18 years and above 5 years, it could be given to the father and he is considered to be a natural guardian of the child. After his death, the custody shall be given to mother of child. There are cases where child is illegitimate and in such cases, the custody is to be kept with the mother. Custody matters are usually subject specific and there could be cases where parents don’t want to take custody of child, if the court is of opinion that for the betterment of child, it is necessary to allot the custody to some third person, the court may do that. Foremost priority of court is to make sure that the child can be raised in the best manner possible and his mental, physical and health needs are taken care of. Education is one of the most important aspects that courts decide upon while taking decisions regarding child custody and other related matters. In general, the chances of full custody for fathers in India, only when the mothers leave the child with fathers for the longest time and fathers have been taking care of child.
