Explained: Child Custody Rights in India
Divorce between a married couple entails not only dividing the couple's assets, but if they had children who were minors or incapable of making their own decisions, the court also decided who the child would live with primarily and how custody would be divided. The word "custody" means "guardianship" in essence. In India, legal custody means deciding who will be the child's guardian. According to the Guardians and Wards Act of 1890, the court has full control over who will be the child's guardian. In an RTI response filed at the Thane Family High Court, it showed that out of 83 child custody battles, the father was awarded custody in only two of them. This shocking number makes people wonder if there is a good reason for the courts to give custody of the child to the mother or if it is just a coincidence.
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The main idea behind legal custody is that one parent stays the main caretaker of the child, and the other parent has to pay child support to help take care of the child after the parents get divorced. When deciding who gets custody of a child, the courts look at what is best for the child and take the child's choice into account if the child is of sound mind and old enough to make that choice. When deciding who gets custody and what is in the "best interests" of the child, the courts look at the following things:
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Family courts consider what is best for the child when making a custody decision, therefore they ask about the medical history of both parents, including their physical and mental health. to assess whether one parent is better equipped—physically or mentally—to care for the child.
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The parent's financial situation is another consideration. both parents' capacity for financial security. to ascertain which parent will be able to best serve the child or provide for their future.
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One of the reasons for preventing children from growing up in a toxic environment is the presence of domestic abuse in the house.
Also Read: Legally, How Compatible Is The Marriage Between A Hindu & Non-Hindu?
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Age and gender of the kid are important considerations when determining custody. Because moms can better assist their daughters, such as during their menstrual period, whilst males are still hesitant to discuss the same with their daughters, mothers are favoured over fathers in custody cases involving girls. This preference is not based on gender preference over other groups. As a result, daughters frequently experience poor vaginal care or infections as a result of parental and child miscommunication.
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Additionally, the child's medical history—both physical and mental—is crucial. Judges can decide who might serve the child the best by being aware of its position. the standard of living that each parent may offer
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A child is impacted by the parents' way of life or habits. Children cannot have a healthy childhood if their parents are battling addictions to alcohol, drugs, or gambling.
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The child's will is the most crucial component that the judges take into account. Which parent the youngster prefers to stay with or who they get along better with.
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The emotional connection plays a significant role in child custody disputes. Which parent-child relationship is closer and more compatible? By figuring this out, the court can decide how to best advance the child's welfare.
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Given that both parents play a crucial part in their children's life, one parent's encouragement and support for the child to connect with the other parent is a factor that is also taken into account. Each parent has unique strengths and advantages for the child.
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Does the court favour mother over fathers in custody matters?
The majority of individuals feel the court is more likely to grant custody to the mother than to the father. This is because it was once the norm for courts to favour awarding child custody to the mother. This was especially evident when the children were younger (babies or early-primary-age young kids). During this time, moms also handled more typical home duties. The majority of child-rearing duties are traditionally performed by women. This is where the purported "female bias" presents itself in family court. However, this is false. There is more to child care than spending a few hours with them, and the court takes into account all of these elements prior to rendering a judgement. The justification for granting mothers primary custody of children, particularly younger ones, is that the mother is better equipped to care for the child than the father.
The court has recognised that, during their early years, children require care that may be provided primarily by a maternal figure; as a result, they prefer not to grant custody to fathers; nonetheless, it is not totally true that fathers never acquire custody. In circumstances where the father refuses to relinquish his parental rights or fights for custody, the court provides both parents equal standing. If the mother is mentally unstable or unfit to care for the child, the father is the second-most desirable candidate to acquire custody of the child. The court may grant custody to the father if the child is older than 12 and expresses a desire to live with him. In addition, the court will give custody of the child to the father in order to create a safe environment for the child if the mother lacks moral character or engages in unethical conduct that could negatively influence the child.
The father is the second-most-favourable candidate to receive custody of the child if the mother is mentally unstable or is not in a fit state of mind to care for the child. The court may give the father custody if the child is older than twelve and indicates a wish to live with him. Additionally, the court will award the father custody of the child in order to provide a secure environment for the child if the mother lacks moral character or has unethical behaviour that could negatively influence the child. The courts are now learning to create a balance between the outdated notion that the mother is the carer and the father is the earner and what is genuinely best for the child on practical grounds. They evaluate elements that could have both positive and negative effects on the child, but it is also usual for a father to sign away his parental rights and pay child support until the child reaches majority.