Does Remarriage Affect Child Custody in India?

Does Remarriage Affect Child Custody in India?

Over the years, Indian courts have seen many cases of second marriages after getting divorced from the former partner. Sometimes people look out for a better partner that can assist them in acquiring custody of the children. Decisions like these have a direct impact on the lives of the children born out of their first marriage.

There are two types of situations in remarriage case-

Remarriage Of A Custodial Parent

Remarriage of a custodial parent obviously implies that the children involved will have to go through some changes like a new home, family or even a new city. All that relies on the unique situation building up in the meanwhile. A stepparent can bring a positive change in your life as well as your innocent child if the remarriage brings financial strength, emotional harmony, and overall stability. Nevertheless, the non-custodial parent can demand for custody modification if the remarriage develops a strained relationship with the kid.

Remarriage Of The Non-Custodial Parent

Remarriage of non-custodial parent generally doesn’t bring any major impact on the child’s custody. However, it may inhibit a positive impact on the custody hearing if the new partner catalyses a positive influence on your routine and a happy kinship with the child. It can demonstrate that the non-custodial is at a better state of mind and can be allowed additional visitations. Even though it will take more than a remarriage or improved lifestyle to achieve a major change in the visitation or custody.

The child’s custody may change in cases where the non-custodial parent is able to keep the commitments over the time and shows stable and positive signs in the court in India.

The Hindu Law states that the father of the minor child has the first right and then mother is considered as the second guardian. However, if the mother is able to prove that she is normal and an independent young woman and has the consent of the child for the custody, can be awarded the custody. Despite the Hindu Law favouring the father, after the remarriage custody may not change.

If there arises a situation where court had granted the custody to the father and asked the mother to assist in guardianship by providing support as told by the court. In such cases if the mother fails to complete her commitments then the custody shall remain with the father.

As published in Deccan Herald, a bench of Justices Kurian Joseph and Sanjay Kishan Kaul said during a proceeding “Merely because he has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children, especially when he has been looking after the children and has not gone back on any of his commitments”.

Some Points Considered By the Court While Deciding the Custody in Remarriage Cases are –

  • Custodial parent’s financial condition
  • Mental and physical well-being of the parent
  • Comfort level of the child with the mentioned parent while growing up
  • Any harmful intention involved
  • No law or gender is above the welfare of the child
  • Well-being of the child irrespective of the both party’s claims
  • During a divorce, the child should not be a source to acquire property or money for maintenance
  • The judge has the full right to adjudicate the best for child. Although the child’s consent is considered and can choose for themselves