The notion of “Child Custody” only comes into light when the parents of the child are getting divorced, where it is on the discretion of the Court of Law to decide where the child should live, may it be with his/her father or mother taking into account about various conditions before according the custody of the child. The custody of a child is the right awarded to a parent given by the Court of Law for the parent to take proper care of the child. However, the court only interferes to accord the custody of a child only if the child is lesser than the age of majority. The parent who is given the right of custody of the child, has the expressed as well as implied responsibility to look after the child financially, mentally, emotionally as well as their education and welfare. The other parent also has certain rights of visitation towards the child. Furthermore, if the child is or more than the age of majority she/he may choose to stay with either of the parent.
Right of Parents on Minor Child
In case the child has not obtained the age of majority, then both the parents have equal rights over the child after divorce, however, equal rights is equals to the custody of the child, here. The Legislation that throws light on this particular issue is The Guardians and Wards Act, 1890, that is quintessentially a secular legislation which may be followed by all the states and religions of India. However, it has also been in notice that various provisions of the abovementioned act come in contrast of the provisions of the personal laws in India. So, to evade this issue away, the family courts while passing a verdict provide its own set of principles and reasoning that the facts and circumstances of the case demands. To be simple, neither the personal laws, nor the aforementioned act can be blindly taken upon, rather what matters the most is the verdict of the family courts while passing a judgement depending on the gravity and situation of the case.
Factors that Determine the Custody of the Child
As briefly mentioned above, there are certain factors that is considered by the Courts of Law before according the custody of a child to any parent and is not just accorded on the face of it. The factors are crisply mentioned below:
- The age of the child/children. [Usual Limitation of the Age is 18 or 21] The age of the child keeps increasing as the verdict of the case keeps getting delayed from year to year. Keeping the present age of the child in mind on the date of the verdict, the court takes a decision.
- The wishes and status of the parent. It is quintessential for the courts to know about the financial statuses of both the parents and whether they would be able to maintain the child’s welfare and education properly or not and most importantly if the parents wish to keep the custody of the child or not.
- Relationship of the Child with Parent. The Hon’ble Court of Law determines the relationship of the child with each of the parent. Here is the critical task for the hon’ble courts before according the custody of the Child. Whomsoever the court finds fit for the health, welfare and education of the child, is awarded the custody.
- The mental, physical and financial condition of each of the parent is also taken into consideration.
- The wish of the Child. If the child wishes to stay with any of the parent, then that is also one of the major factors that the Hon’ble Courts take into consideration.
- If there is any past incidents of abuse, neglect or violence towards the child from any of the parent.
Modes of Child Custody in India
The Indian Family Courts usually prefers to four modes of child custody in India before awarding one depending on the facts and circumstances of each case. They are as follows.
If either of the parent is awarded the physical custody of a child, then it means that, that child will be staying under the guardianship of the awarded parent and the other parent who did not get the custody will have the visitation rights with due permission from the Court of Law. This mode of custody is often granted and is the most pervasive mode of custody granted by the courts of law as this way, the child gets love, care and affection from both the parents. The surrounding and environment of the child would not be isolating and depriving him/her of his rights from the other parent either.
Joint Custody is often unusual but not impossible. As the term suggests, it is a joint custody awarded to both the parties i.e., the parents to keep the child in turns, however, that does not imply that the divorced parents have to stay under the same roof in order to keep the child, rather they take turns to keep the child under their respective guardianship. This mode of custody is however, the best solution between the constant debate between who’s the best for the child; the father or the mother. The reason for this one mode of custody is that no parent or child deprived of each other and no one would feel the absence of one another. Secondly, the accordance of this mode of custody would make sure the child/ children gets all the love, care and affection from both, the father as well as the mother equally irrespective of their divorce.
Third Party Custody
Third Party Custody is just as simple as the name suggests. This is yet another mode of custody where the Hon’ble Court of Law finalizes after due observation that neither of the party (i.e., no biological parent) is capable may it be financially or physically to take proper and good care of the child’s welfare and education and hence, the custody of the child is not granted to any of the parent. Instead of granting the custody of the incapable of mother or father, the right is awarded to the third party who is also related to the child or the parents to take good and proper care of the child. Example: Paternal or maternal grand parents are the best example for Third Party Custodians where the court observes instead of the child’s parents; her/his grandparents are fit enough for the child’s custody.
This is the last mode of custody where the right of custody is given to only one biological parent i.e., either the father “or” the mother and the other parent is purposedly kept away from the reach of the child depriving him/her from their visitation rights as well. This might be sounding a bit harsh but this rule is the last rule opted by the Court of Law only to keep the child’s welfare in tact. The non awarded parent, in this case, is deprived of each and every right towards her/his child if that particular parent is found to have previous records of abusiveness or is incapable financially to take good care of the child.
The Custody of the child is always a debatable topic as to who is superior to whom, may it be the father or the mother. However, the Courts of Law being a juristic, independent body keenly observes and awards the right to the suitable person that deems fit for the welfare, well-being and the best interests of the child, keeping the parents off their pedestal and acting neutrally. However, one of the major concerns that the custody faces is the clash between uniform legislations versus the personal laws and hence, the courts have been given the power to scrutinize the facts and circumstances of each case and lay down principles and reasonings accordingly.
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