ARTICLE
Gracy Singh
27th Nov 2023
Child Custody Read Before You Leap
1.Introduction
Custody of a child shall be handed over to such a person who fosters him with care, love and affection. In case a marriage breaks down, and the parents of a child are separated, then it has serious consequences on the upbringing of the child. The childs custody is given to one of the parents and the welfare of the child is considered most important during the assignment of custody is given to one of the parents and the welfare of the child is considered most important during the assignment of custody.
Child Custody refers to the rights and responsibilities between parents for taking care of their child/ children. As, understood commonly, custody means guardianship, i.e. upbringing, or parenting of a child is the process of supporting the holistic development of a child.
So, the present blog sheds light on different laws applicable to the custody of children of different religions. Further, the blog deals with the critical issues which parents face in case of custody rights. Also, this article explores many answers which parents look for before appealing for custody in courts.
2.What are the factors that constitute Welfare of a child?
Welfare of the child, broadly, includes the following factors:
Safe-keeping of the cost;
Ethical upbringing of the child;
Good education to be imparted; and
Economic well being of the guardian;
If either of these factors are not met by the parent, then he or she loses the custody of the child.(1)
3.Who can claim custody of a child?
The Honourable Supreme Court and other Courts in India have repeatedly that for the custody of a minor, the only consideration is the welfare of the minor, irrespective of the claims of the parties to the custody of children.
The custody of a child can be claimed either by mother, or the father, in any of the cases where the two of the parents are not in the picture due to operation of some other laws, or deceased then in such a situation, the maternal, or the paternal grandparents, or any other relatives can claim custody of the child strictly out of compassion towards the child. In many cases, the court appoints the third person as the guardian of the child.
4.Who has the priority claim to the custody of a child ?
The Honble Supreme Court and other courts in India have repeatedly mentioned that for the custody of a minor, the only consideration is the custody of a minor, irrespective of the claims of the parties to the custody of children.
Under Hindu law and as well as Secular law, the custody of the child under the age of five is usually awarded to the mother. In most of the cases fathers gets the custody of the older boys and mother of the older girls. Moreover, childs interest is the main criteria and the choice of the child above the age of nine is considered by the court. Wherein a mother if found to ill-treat and neglect the child is not given custody.
5. Who has a right on minor child after divorce?
Both the parents have an equal right to the custody of a child. However, who gets the custody of a child is still a question which the court has the power to decide upon. Moreover, when it comes to personal laws the statues are conflicting as compared to secular enactment in the form of The Guardian and Ward Act, 1890 which holds the welfare of a child as the paramount importance and thereby the court of competent jurisdiction endeavour to strikes a balance between the two. And as because the custody of the children is given to the one parent that doesnt implies that the other parent cannot be in contact or see the child. The courts in India makes sure that the child gets attention and affection of both the parents. The court gives the other parent visitation rights of which the conditions are determined by the court.(2)
6.How can a mother/father lose custody of his/ her child ?
According to Section 39 of the Guardians and Wards Act, 1890, if a mother/father fails to provide proper guidance, care, or support, and is determined to be unfit, drug abuser, or who emotionally and mentally abuses the child, will eventually lose custody of their child. Also, a parent who violates court orders relating to the divorce, or who engages in criminal activity will eventually lose the custody.
7.At what age can a child decide his/her custody in India ?
A child can decide custody on its own only after attaining a particular age i.e., nine years as per the Guardians and Wards Act 1890 (GAWA). Once a child achieves the age of nine years in India, his/her preference for custody is considered.
8.Conclusion
Custody battles are already traumatic and exhausting experiences for a child to go through, so the first priority of the parents should be the desire, and happiness of their child/ children.
Judges must decide custody based on the best interests of the child. The best interests of the child law requires courts to focus on the child's needs and not the parent's needs. The law requires courts to give custody to the parent who can meet the child's needs best.
9.Citation:-
1.Akansha upreti," Child Custody- Read Before You Leap " available at : https://www.legalserviceindia.com/legal/article-5163-child-custody-read-before-you-leap.(last visited on 27th Nov 2023)
2. Vidhikarya , " Child Custody Laws In India " available at:https://www.legalserviceindia.com/legal/article-710-child-custody-laws-in-india. ( last visited on 27th Nov 2023)