It is nerve-wrecking for me to even think about the agony couples suffer while their marriage falls apart. But it pains us so much more to imagine the suffering their child experiences in the process. Yes, you read it right, we are talking about the painful process of getting divorced from your spouse and the struggle thereafter of getting the custody of your child(ren). The whole journey of separation is ugly but settling the matter of child custody is even uglier. While amicable resolution is a possibility, in reality it is farfetched considering the relations between two adults have already turned bitter due to irreconcilable differences and sometimes inflated egos.
This makes us ponder over the first thought that would possibly come in the minds of divorced parents – who gets the child’s custody after separation? There could be reasons for which each parent would want to win the custody of the child after divorce. Division of parental property, financial support for child’s education, good upbringing, safety and maintenance, visit rights, alimony, comfort with the child, right to take decisions with regard to child’s life, etc. are some that we could imagine. They would hire the best child custody lawyer to win the custody and block it for the other parent. However, as per the Indian child custody law, both parents have equal rights over the child even after their legal separation. The custody of the child who is less than 18 years in age only implies, with which parent the child will physically stay. One parent winning the custody does not mean that the other parent seizes to be the parent of the child and loses all rights over the child. The child custody law clearly states that irrespective of their marriage being annulled, they continue to be the natural guardians of the child. In other words, the custodial parent becomes the primary caretaker and the non-custodial parent retains the right to meet the child.
In most of the cases in India, the custody of the child is granted, by the family court, to one parent and the access of child is granted to both of them. Data clearly shows that out of around 90 cases in a particular year, the custody of the child has been granted to fathers in only 2 cases. What does this signify? Do mothers have an upper hand in the child custody cases in India? No, despite data favouring the mothers, it is not the case. Many-a-times fathers also believe that they can claim the custody once the child attains a particular age. However, this is nothing more than a myth, a disbelief that many continue to live with.
It has been evident in several landmark judgements that the courts have given high importance to the best interest and the ‘right of the child’ compared to the ‘right of a parent’ than anything else while assigning the custody after divorce to a particular parent. However, there may be exceptions or special circumstances that courts consider on case-to-case basis. For example, a) in case a child is less than 5 years old, the custody is usually given to the mother, b) generally father gets the custody of older boys and mother is given the custody of older girls and c) courts also consider the choice of the child who is above the age of 9 years.
It brings us to a point where it becomes imperative to throw light on the types of child custody allowed by Indian law. It can be one of the following kinds:
- Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
- Joint Custody – where child lives with both parents on rotational basis and duration of child’s stay may vary from several days to weeks to months based on mutual agreement between the separated parents.
- Sole Custody – where the child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.
- Third Party Custody – where a guardian or third person gets the custody of the child from court instead of the biological parents. This is also often termed as non-parental custody.
We must also briefly know legal provisions that are applicable. In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. At the same time, India is a vast nation with diverse religions and there are corresponding laws to deal with separation and child custody. The legal provisions that exist in the Indian Constitution based on the religion we belong to are:
- Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.
- Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
- Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
- Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.
It is already a nightmare for parents who are beleaguered with separation. Adding to woes, is the complications of getting the custody of their biological child(ren). It is a battle that none would want to lose. Imagine yourself in this situation where you are looking for information on how decisions are taken and judgements granted with respect to child custody after divorce. The best way is to contact a child custody lawyer who not only can guide you in the process but sail you through with bare minimum stress.