Child Custody

Child Custody Issue Can Be Divided In The Following Heads

What child custody right is.
What are the criterions which the courts take into account to award custody to a spouse as against the other.
Guardian & ward Court’s Powers
Maintenance of Child
Court’s Role In Custody Matters
Legal provisions involved In Custody Matters
Things to Avoid When Seeking Child Custody
Importance of lawyer’s assistance & guidance in the matters involving Child Custody
Excerpts from Judgments on Child Custody
Conclusion
Related Links

What child custody right is:

Over the years, there is a major shift in the laws and legal pronouncements governing the custody of a child. Earlier, the child custody right used to be considered as the ‘right of spouses’, however, lately the courts have begun to consider it as the ‘right of a child’ and not that of spouses.

Criterions which the courts take into account to award custody:

Every child custody Case is decided by a Court and consequently the custody of the child is handed out to any one of the spouse based on the peculiar facts and circumstances of the particular case, however, the prime criterion on which custody is decided in favour of one spouse as against the other is the ‘best interest and welfare’ of the child‘. The custody of the child is entrusted to the spouse who will best serve the emotional, educational, social and medical needs of the child.

To arrive at the conclusions as to what is in the interest of the child and what is not, the factors which are weighed and considered by the Courts very meticulously are:

Age & Sex of the minor.
Family background of the husband & wife; their educational background; and their financial background.
Whether the husband wife live far apart in the same city or in different cities.
Whether one of the spouses lives in city and the other in a village.
Wishes and preferences of the child
Siblings’ wishes: As the thumb rule is that the Courts do not like to divide the siblings unless situation of the case so warrant.
Better chances of overall development of personality of child.
Conduct of the parties before the Court.
Etc.

Besides these factors and criterions there are some settled positions and propositions in law. It will be in the fitness of the things to clarify those positions. Likely talk about, that only earning capacity of the any spouse does not determine the custody issue. What matters is the capacity of the spouse to provide to the child a safe and secure environment. Just because a mother is non-earning she does not stand disqualified to get physical custody of the child on this ground alone. The Court might always direct earning father to provide maintenance to the child. The same applies vice virsa, when father is found worthy of giving physical custody of the child, however he is not found to be having sufficient means and income to support the child.

The other settled legal position is, that the mother is considered to be the preferred custodial parent when the child is of a tender age, until and unless there are compelling and justifiable reasons to do so. However, once the child attains a discernible age, child’s wishes will always be given a due weightage.

Guardian & Ward Court’s Powers:

Guardian and Ward Courts have basically three powers, namely:

Powers to grant interim Custody to one of the spouses
Powers to grant visitation Right to the other spouse to whom physical custody of the child is not entrusted.
To grant “Permanent Custody” of the child.

Interim Custody Orders:

During the pendency of the custody case, the Court might, on application from the parties or on its own, pass such interim orders and make such interim provisions, as it deemed just and proper qua the custody of the child. Generally, while awarding an interim custody the Courts ensure that such an order does not affect the overall development of the child and the same is in no way prejudicial to the interest of the child.

Whereas the courts try to bring equilibrium between the husband and wife, they also keep a vigilant eye that the child should not become shuttle cock between warring spouses.

While awarding interim custody the courts have powers to impose conditions, such as deposition of passports before it- of the child, as also that of the parties, so that the child could not be removed from the jurisdiction of the Court.

Visitation Right Orders:

Visitation Right is granted by the courts both, during pendency of the case, as also while passing the final judgment and order. Visitation right is granted on the sole premises that development of a child is possible only after the child is showered with the love and affection of both- the father and the mother.

Such visitation rights and Access to the non-custodial parent could be daily, weekly, fortnightly, or monthly. It could be just day access, overnight access, weekend access, vacation access, and on special days, like school events, etc. It could also be free access with no fixed schedule.

Permanent Custody Orders:

Permanent Custody of a child is awarded by the Court after determination of all aspect of the case. Once the permanent custody is granted to one of the spouse, other spouse gets an inalienable right to meet the child. However, such meeting right, which is also called as “visitation right”, is subject to the terms and conditions being imposed by the Court. The modalities of such meetings and visitations are always stipulated vide Court orders, be it interim order or the final order, just to avoid future tussle between the spouses.

Maintenance of Child:

As they say, every right is accompanied by a corresponding duty, here also the parents enjoy their ‘right to custody of the child’ subject to their ‘duty to maintain the child’. As important as the right to custody or access is, so is the duty to provide for and maintain the child.

The spouses can give one-time lump-sum amount or a staggered payment at different stages of the child’s educational life. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child.

Court’s Role In Custody Matters:

The court is parens patriae, meaning, the court is ultimate guardian of the child. And, therefore who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met, are all amply protected by law. Not only this, even the terms of custody, access and maintenance can be altered by the court even after passing of final judgment and order. Reason: For the Courts, ‘Child’s best interest is of paramount consideration’.

Legal provisions:

There are multiple legal provisions governing the child custody issue, Such provisions are contained in the following Acts: Domestic Violence Act, 2005; Guardian and Wards Act, 1890; Hindu Marriage Act, 1955; Hindu Minority & Guardianship Act, 1956; Muslim Women (Protection of Rights on Divorce) Act, 1986; and Special Marriage Act, 1954.

Things to Avoid When Seeking Child Custody:

There are of course some very important things that we would want to steer clear of in the larger interests of the parties to the child custody case, as also their relationship with their counsel which they hire to represent them in the Court of law:

Don’t harass, intimidate, or threaten the other party.
Don’t ever seek custody of child simply as leverage to gain advantage over the other party.
Don’t communicate with the other party if they have a lawyer and you don’t;
It is always good that your lawyer maintains cordial relationship with other party lawyers.
Do attend all legal proceedings, court hearings, or meetings regarding custody.
Do maintain a positive attitude, healthy lifestyle and economic stability, especially if you are already going through tough times.
Lastly, you should avoid crossing boundaries if you are subject to various court limitations. For example, if you only have limited visitation right, and are seeking full custody, you shouldn’t try to “jump the gun,” even if the other parent approves for your further and more access to the child, other than what are granted by the Court by way of order. You should first have any existing custody order modified before you adjust your schedule – this will help you avoid legal troubles on your part.

Lawyer’s assistance & guidance in the matters involving Child Custody:

Filing for child custody generally requires the assistance of a child custody lawyer. Even for out of court agreements, it’s generally a good idea to have the agreement reviewed by a lawyer. This way, you can be assured that your interests and that of the child’s interests are being met, and also that you won’t be violating any laws or court orders in the process. Also, your lawyer’s presence is effective during court proceedings, needless to say, which are full of multiple legal nitty gritty.

Excerpts from Judgments on Child Custody:

The Supreme Court of India and High Courts of various States have consistently held that in deciding cases of child custody `the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute‘. The following are some of relevant excerpts:

Excerpts from Gaytri Bajaj Vs. Jiten Bhalla, 2012(12) SCC 471, the Supreme Court Judgment: “14. From the above it follows that an order of custody of minor children either under the provisions of The Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.”

Excerpts from Gaurav Nagpal Vs. Sumedha Nagpal, 2009(1) SCC 42, the Supreme Court Judgment: “52. The trump card in appellants’ argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments. 54. Learned counsel for the appellant submitted that the child’s education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does not have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child.”

Excerpts from Narinder Kaur Vs. Parshottam Singh, 34 (1988) Delhi Law Times 54, the Supreme Court Judgment: “6) It was submitted by Mr. Mitra learned counsel for the father that the child would be attaining the age of five years in August next and although he had been living with the father. This argument is not correct. After the order dated 30.1.85 was made by Mrs. Kanwal Inder, the then Guardian Judge, the mother started living with her husband along with the child. The child is too young to form any intelligent preference. I am quite satisfied on the facts of this case that the welfare of the child lies with her mother, the appellant herein. He needs motherly love and care for his proper growth. It was also contended that the child is now school going. He can be admitted in a school near the place where his mother resides. Of course, I have also no doubt in my mind that the welfare of the child is also utmost to his father. He can therefore pay the necessary expenses for the maintenance of his child to the mother if he thinks that the mother cannot bring up the child properly on account of her having no income of her own. Section 3 of the 1956 Act says that in the appointment or declaration of any person as guardian of Hindu minor by a court, the welfare of the minor shall be the paramount consideration. This has to be kept in view while ordering interim custody of the child as well.”

Excerpts from Roxann Sharma Vs. Arun Sharma‘, Civil Appeal No.1966/2015, Judgment Dated: 17.02.2015, the Supreme Court Judgment: “12. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.

Excerpt from Chethana Ramatheertha Vs. Kumar V. Jahgirdar, 2003(3) KarLJ 530, the Karnataka High Court Judgmentt: “25. The role of the mother in the development of a child’s personality and her ability to do so can never be doubted. In fact, a child gets the best protection and education only through the mother even in nature. It is a most natural thing for any child to grow up in the company of one’s mother. In fact the question always should be as to whether a child should be deprived of the company of the mother. Company of the mother is the most natural thing for a child. That is what nature has evolved over a period of generations. So long as the mother does not suffer from any disqualification, she does not disentitle herself to bring up her child. It is only because of her own misconduct or misdeeds or when she is not in a position to take care of the child due to reasons financially or otherwise, the custody should be shifted from the mother. Neither the father nor any other person can endow the same kind of love, affection, care and sympathies to a child that as of a mother. Company of a mother may be in fact much more valuable particularly to a growing up female child and until and unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The question is not so much as to whether father or mother gets the custody of the child, but as to whether the child should be deprived of the company of the mother. In fact, it can be presumed as a proposition of considerable weight and justification that the company of the mother is always in the welfare of the minor child until and unless the contrary is established. This basically we think, should be the approach of any Court while considering the question of granting the custody of a minor child to either of the parents. The mother, because of her position alone, scores over the father and to alter this position, it calls for definite material indicating the disqualification or disentitlement on the part of the mother vis-a-vis the adverse interest to the child or the welfare of the child being put to jeopardy.”

Conclusion:

In the Child Custody matters, all concerned, be it the judge or the lawyers representing the warring parties to the case, not only cite and apply laws and plethora of judgments of the superior Courts, but also bear the emotional and psychological need of the father, the mother and the child in question.

A good Child Custody lawyer has to handle the legal and emotional issues with utmost precision. A Child Custody lawyer has to act not only as a professional but also as a human being with the heart of a parent to fight out the Child Custody case in the Court of law.

To Know More, Go On Clicking On The Following Links

Child Custody Under Domestic Violence Act
Child Custody Under Guardian and Wards Act
Child Custody Under Hindu Marriage Act
Child Custody Under Hindu Minority & Guardianship Act
Child Custody Under Muslim Women (Protection of Rights on Divorce) Act
Child Custody Under Special Marriage Act

Matrimonial Courts & Fora- Civil & Criminal

[In Hierarchical Order]

Supreme Court Of India
High Courts Of Various States
District & Session Judges [D&SJ]
Family Courts
Metropolitan Magistrates/ Civil Judges
Senior Civil Judges
Civil Judges
Mediators & Concilliators.