Opting for divorce can take a toll on one’s mental and social well-being. To be able to decide the custody of the child is another over taxing affair.
Separation of parents is one of the biggest burdens; the trauma that leaves a lasting lifelong mark, upon any child. On top of it, relations become more strained if the matter of child custody comes within the divorce discussions.
What is custody of a child?
Matters of custody means taking decisions relating to the control, care, and maintenance of the child who is below the age of 18 years. This is decided through parameters such as finances, security, medical, educational, emotional, physical and developmental lifestyle of the child as well as of both the parents, individually.
How can a mother get the custody of her child?
After the divorce, both the parents have equal rights when it come to the custody of the child. However, who shall get the sole custody of the child rests with the discretion of the judge. Giving the custody of a child is a huge decision as a lot of lives can be made as well as devastated by this one decision, thus the courts carefully decide the matter of custody of a child. The courts usually make sure that in their decision, the welfare of the child is reflected rather than the right of the parent. Usually the courts give the sole custody to one parent with primary rights and the other parent is given secondary rights such as visitation etc, keeping in mind the affection and the attachment that the child has with both the parents, individually.
- As per the Hindu Law, if a child is below the age of 5 years, then the priority custody lies with the mother only.
- If the mother is capable of providing the child with a safe and secure environment, then the custody of the child is given to her, even if she earns less than her husband or has absolutely no income. In that case, the court orders the father to pay child maintenance to the mother.
- The consent of the child is also asked upon in custodial matters. If the child is close emotionally to the mother and expresses the wish to stay with the mother, then the court is likely to give the custody to the mother only.
- Mother is the preferred custodial parent for most of the courts in situations where the child has a step mother. The court in many cases have explained that the attention of the step mother shall be more towards her own children and the father’s day would be spent out of the home at work, thus, the child’s safety and well-being would be more assured with the mother.
- The court is the ultimate guardian of the child, any decision or order can be overturned if its earlier instructions have been violated in any form or if new facts have come into form.
- In many cases, where the mother has brought up the child on her own, without much involvement form the father in the day to day life of the child, then in that case too, the mother is the preferred guardian of the child.
What happens if the father keeps the child away from the mother?
Unlawful custody – sometimes, there are cases where a parent unlawfully keeps the child forcibly with themselves, away from the other parent and not letting them discharge their duties. In such situations, the aggrieved parent can
- File a petition under section 9 of the guardians and wards act where they can ask or plead the court to interfere and restore their rights.
- File a writ petition in the High Court or the Supreme Court of India, the aggrieved parent can file a writ petition of habeas corpus in the appropriate jurisdiction.
How can the Law Office of G.S. Bagga & Associates help you in getting custody of your child?
Greetings! We at the law office of G.S. Bagga have been handling family and custodial matters for 7 years now. Custodial matters of a child can be tricky and differ from case to case, but we can assure you that our goal has always been centered towards client satisfaction. If you’ve found the above information satisfying, you can get in touch with us and can book a free consultation. We would love to help you in this custodial journey of you and your child. Feel free to contact us, anytime.