In India, the family court grants custody of the child during or after the spouse’s separation proceedings. Each case has its own distinct reason. The court prioritizes the “right of the child” or “benefit of the child” rather than the rights of the parent.
The custody is given to the parent who can offer the child the most optimal mental, social, and physical environment. Before delving into custody decisions, let’s first examine the various forms of child custody.
What are the types of child custodies?
- Legal custody: Legal custody includes both parents having the privilege to make significant, lasting choices regarding the child’s well-being. This involves choices regarding the child’s schooling, medical care, and general upbringing. Although one parent may have primary physical custody, both parents can share legal custody, allowing them to work together on important aspects of the child’s life.
- Physical Custody: Physical Custody entails the parent with whom the child mainly lives. The parent with primary physical custody is in charge of the child’s daily needs and can make instant choices regarding the child’s daily routine. Physical custody often implies that one parent has the main responsibility, with the other parent potentially having visitation rights, unlike legal custody.
- Bird’s Nest Custody: This is the most uncommon form of custody recognized in India. In the context of Bird’s Next Custody, the child is provided with a residence, while the parents alternate in their residence with the child. Consequently, the parents are in a continuous cycle of moving in and out of the house, rather than the child.
- Split Custody: In a marriage with multiple children, custody is divided between the parents. Each parent has full-time custody of at least one child. This arrangement is less common and is usually considered when it aligns with the children’s best interests and they are comfortable with the setup.
- Alternative/Divided Custody:During alternating or divided custody, the child will spend a specific amount of time with one parent followed by a similar amount of time with the other parent. This custody arrangement allows the child to have a strong bond with both parents by living with each parent in turns.
- Third–party Custody: Third-party custody is awarded by the court when it decides that both biological parents are unfit to have custody. In these situations, custody is given to a third party, like a grandparent, relative, or close family friend. This choice is determined by considering what is best for the child and assessing the third party’s capacity to offer a stable and caring setting.
In India, the legal process for divorce and child custody can often be complex and lengthy, sometimes extending over several years. This prolonged duration can be challenging for both the parents and the child involved. Recognizing the potential impact on the child’s well-being. Indian law provides provision for interim or temporary custody to ensure that the child’s needs are met during the pendency of legal proceedings.
What are the factors that are kept in mind while deciding the custody of the child?
The Supreme Court of India, through judgments in various cases,has explained the factors that judges should keep in mind while deciding custody of the child. They are –
- Best Interests of the Child: The court focuses on what will best serve the child’s needs and welfare. This includes considering factors such as the child’s age, gender, mental and physical health, emotional ties with each parent, the parent’s ability to provide a stable environment, and the child’s preference if they are of a suitable age and maturity.
- Right of the Child: The emphasis is on the child’s right to have a safe, stable, and nurturing environment. The court takes into account the quality of the relationship between the child and each parent, the child’s schooling, social activities, and the overall impact on their well-being.
- Unique Nature of Each Case: Every custody case is unique and must be evaluated on its own merits. The court considers the specific circumstances and dynamics of the family, including any history of abuse, neglect, or other issues that could affect the child’s safety and welfare.
- Custodial Arrangements: The court may grant sole custody to one parent or joint custody to both parents, depending on what arrangement is deemed to be in the child’s best interest. In joint custody, both parents share decision-making responsibilities, even if the child resides primarily with one parent.
- Visitation Rights: The non-custodial parent is typically granted visitation rights to maintain a relationship with the child unless there are compelling reasons to restrict such access.
- Child’s Preference: If the child is of sufficient age and maturity, their preference may be considered by the court. However, this preference is not the sole factor in determining custody, as the court’s primary concern is the child’s welfare.
What are the Indian Laws on Child Custody?
India is a religiously and culturally diverse nation, with most religions having their own distinct law. In this blog, we focus on the Hindu laws concerning child custody, which are primarily governed by three major statutes: The Hindu Marriage Act, the Special Marriage Act, and the Hindu Minority and Guardianship Act.
Hindu Marriage Act: This act applies to children whose parents both follow the Hindu religion. Under this act, the appropriate courts can pass judgments, orders, and amendments related to the maintenance, education, care, and well-being of the child.
Special Marriage Act: This act applies in cases where the parents belong to different religions or have gone through a court marriage. Similar to the Hindu Marriage Act, the courts can issue judgments and orders concerning the child’s maintenance, education, care, and well-being.
Hindu Minority & Guardianship Act: This act is applicable only when both parents are Hindu and do not recognize third-party rights. It solely considers custodial rights between the biological parents.
How can the Law Office of G.S. Bagga & Associates help you in getting custody of your child?
Greetings! At the Law Office of G.S. Bagga, we have been handling family and custodial matters for 7 years. Child custody cases can be tricky and vary from case to case, but we assure you that our primary goal is client satisfaction. If you’ve found the above information helpful, you can contact us and book a free consultation. We would love to assist you in your custodial journey with your child. Feel free to contact us anytime.
