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  • Category: Indian Law

    Children Custody after divorce (Mutual or Contested)


    Have a query about child custody after either mutual or contested divorce? wondering hwy fathers are treated at second place during divorce? Here, on this page our ISC experts shall provide you with responses to your queries.

    I would like to ask for more information on the Child custody after divorce (Mutual or Contested).

    On what ground are the custody of the child / children taken. What all points do one need to take or discussed before the parting take place. On whose favor(Majority of time) is the decision given & why?. If both Father & mother are equal in parenting then why are father always treated as a second place during divorce.

    Kindly provide your say or knowledge.
  • Answers

    4 Answers found.
  • After divorce, the custody of the children can be decided by giving more importance to the children's future rather than other issues. Their child's interest plays a big role in deciding this. The custody can be with any one of the two parents or to a third party also.
    Once the divorce is given the child can be under joint physical custody. Under this both, the parents will have the legal right to the child but physically the child with be one parent either mother or father.
    The second is that only one of the two parents will be decided as the sole legal right holder. If the court finds that one of the two parents is not good and not suitable for good parenting, they will give the child to the other parent.
    Sometimes a court may sanction legal right to take care of the child to a third party also.
    In India, the courts may give their judgement based on the religion of the family as our country is secular. under Hindu act, if the child is above nine the court will ask the child about the interest and accordingly, they give the right to the parent. If the child is at a very young age the legal right will be given to the mother. In some cases, boys who are above 5 years are given to father and girls above 5 to mother.
    Custody of a Muslim child will be generally given to the mother as per the Muslim law if there are no legal problems against the mother.

    drrao
    always confident

  • Well, let us discuss it...
    Custody will be granted in the best interest of the child and not of the parent & given to one parent who is truly capable of caring for the child. They actually see whether the child is comfortable with mother or father & most of the other things like the child's welfare in education, health, and dependency will be considered by the court so it's most likely that the parent who has the best chance to raise the child. but this is often for children who are no longer dependent on their mothers.

  • Although in legal terms, the decisions would be based on the facts and on the basis which would be more beneficial for a child growth & development but even after this the mother may have the advantage for being on the emotional side which often remains the case more especially when the mother is found to be independent with sound economic condition.

    Although even after the divorce is inevitable, both parents continue to be the natural guardians of a child with only the major issue remains with the custody of a child implies as to who the child will physically reside with and the good thing is that over the years there is a shifting in the legal instance from being the "right of a parent" to being the "right of a child" wherein the law continue to abide with the best interest and welfare of the child.

    The economic condition isn't the only basis but the custody would also be depending upon the other aspects like the child's emotional, educational, social and medical needs. This is wherein the case that even a non-earning mother will not be declared as disqualified for the custody but instead the father may be asked to provide initial support for child's maintenance & this may continue till the time when the mother may have become independent or may be the case when the child has reached up to a certain level of his or her age to enable him or her to decide on the final decision of the issue of custody and access.

    Direct legal advice is requested by the author because there isn't any specific set of terms & conditions or norms but instead the access & the child support can continue to be altered with the changed circumstances and/or in the interest of the child.

  • The child custody is always a bone of contention between the parents after the divorce or judicial separation. The law has defined it in particular terms but the main idea behind the child custody is welfare of the child, medical treatments, housing, educational and food needs etc and courts generally award the verdict for the physical custody of the child with one of the parents while the other (known as non-custodian parent) will have the visitation rights. Though the general principles of child custody are same in all the cases but due to religious practices and doctrines there are certain structural differences in the court verdicts. The child requires the custody of the particular parent up to an age of 18 and does not require it ones he attains the age of 18 years. Each parent will try to give the best arguments in the court but court decisions are based on the best interests of the child as his welfare is the main focus point in this custody tussle.

    The main laws which govern and tackle the issue of child custody are the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. These laws are applied in consideration of the personal law, if any, of the involved parties. The above two acts are followed in unison rather than alone. Most of the court verdicts follow some general principles though they are not the hard and fast rules. These state that the children of tender age should be in the custody of mother, older girls should also be kept with mother and older boys should be in the custody of Father. These general directions are to be exercised along with the welfare of the child which is the most important aspect. Welfare means welfare in all senses that is moral and physical well being and also the availability of affection of the chosen parent. The courts also believe that during the tender years the father can not provide the maternal affection which is so much required for the psychological growth of the child. So during that phase the presence of mother is indispensable.

    In certain conditions court may observe that if both the parents are not capable of the child custody the court can direct for a third party custody also.

    Sometimes personal laws also play a role in determining the custody period. For example in Muslim community the mothers right to custody (known as hizanat) of the son terminates when the son reaches an age of 7 years while a daughter is to be kept with the mother till puberty.

    Knowledge is power.


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