How is Custody Of Child Determined?

It’s not easy to settle the matter of the custody of child while the couples can part their ways and settle their disputes by taking divorce. Ultimately, it is emotionally challenging for the child who suffers the most during their parent’s separation but the couple may decide to move on in their life separately. Generally, child custody is decided by parents before filing of mutual consent divorce, however, the problem arises when they cannot come to an amicable settlement.

The Indian law, holds the welfare of the child as the most important factor of consideration while deciding who will get the custody of a minor child. Welfare of child cannot be measured by money or physical comfort alone but court cannot disregarded the tie of affection. While deciding the custody of a minor child, moral and ethical welfare is more important rest is child’s ordinary comfort, health, contentment education and intellectual development. The parent with whom best welfare of the child exists is allowed to get the physical custody and other parent get the visitation right.

According to Hindu Minority and Guardianship Act, 1956, the mother is always given the first preference if she wants the child with her. If the child is below 5 years, then she can alone keep the child. After the age of 5 years of the child, many conditions are checked for like who is going to take care of the expenses of child and welfare of child.

Welfare of child broadly includes following factors:

  • Safe-keeping of child
  • Good education to be imparted
  • Economic condition of parent
  • Ethical upbringing of the child
  • Family background of child

Indian society believes that no one can be a better caretaker than a mother. However, it is not true all the time. Hindu Minority and Guardianship Act, 1956 is not a bar if father was taking care of the child since birth and child has more affection towards father. Father may also get the custody in following manner:

  • If the mother willingly  gives up the child’s custody.
  • If the child is of 13 years or more and expresses his wish to stay with father.
  • If the mother is indulge in adultery or of immoral character which may affect the child as well.

All cases of child custody are treated on an individual case-by-case basis. However, both litigating spouse may present their suitability for the custody of the child. The court have the discretion to choose what is best for child. Depending on the situation, the custody of the child is granted in the following manner:

  1. Physical Custody of Child: When one spouse is abusive and not fit for the physical and mental reason, the court gives the custody to that spouse who is caring towards the child. The spouse who gets the custody is decided as a primary caretaker of child. However, the other spouse can take care of the expenses of child but will not be in any part of child’s life. Anyhow, court often may sensitive in this kind of issue and give the visitation right to the other spouse.
  2. Legal Custody of Child: Legal custody of a child means having the right to make decisions about a child’s upbringing. The right of decision making about the schooling, religious upbringing and medical care of the child goes with the parent who have legal custody.
  3. Joint Custody of Child: Joint custody is also known as shared custody. In joint custody of child, parents share the decision making responsibilities and physical control and custody of the child.

Finally, the parents who are hopeing to win the custody of their child should be prepared to make a positive first impression. So in order for that to happen, search a suitable and qualified family lawyer who can help you in building that first positive impression and you can also reach at  or call +91.1147069622 for the same.