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  • Category: Indian Law

    Custody of child as per Indian law for divorced or separated parents in India


    Do you have questions regarding custody of child after divorce or separation? Looking out for the normss according to Indian law here? Check out this Ask Expert page where you can get all the required information.

    It is sad but a reality that normally the custody of the child is given to the mother as it is said that they can take better care of the child or children. I would like our expert to provide your valuable notes as the Indian law about the custody of the child/children in the following cases or scenario with the section if possible.
    1. The couple is not divorced but living separate and the husband is working abroad so have to keep the child/children with the mother of children. What are the chances of keeping the custody of the child?
    2. The couple is divorced but the child was with the wife and now the wife has married to another person. What are the chances of the child father to get custody of the child if the child is below 5 years?
    3. The couple is divorced and has 2 children(one is 6 years and another is 3 years). What are the chances of the father getting the custody of at least one child or is that father has to pay for them and can only meet them but cannot have the custody?
    4. If the child/children are with the wife and the father is just allowed to meet them once a week or month and if the father is working abroad, then these chances are even worse. What if the wife doesn't pick up the call and allow the children to talk on the phone, and ask for maintenance, what can a father or husband do to get the custody of the child?
    5. What and how can the father ask for his child/children custody? What if the wife dies in the event, who gets the custody of the child. the father or the wife's family?
  • Answers

    3 Answers found.
  • In any case, the court will give importance to the welfare and interest of the child and not to the rights of the parents. So there is no rule that the child should be given to mother only. There are some cases where the courts have given the right to father also. There are cases where the children opted to stay with their father. Court has considered the interest of the child more than anything else.

    If a parent is really interested in the welfare of the children, I feel they should not go for a divorce. Why we should deprive the child the love and affection of both the parents by going for a divorce and they should adjust with each other and continue together for the welfare of their children. This is the best way to follow.

    Answer to your points.

    1. The couple is not divorced but living separately. So here they have to come to an understanding about their children and they can decide. No court will come into the picture as they have not approached any court for separation.

    2. When the divorce was given the court might have announced about the custody of the children. That is to be followed even the mother who was given the custody of the children legally should take care of them and she should continue to take care of them. That lady should tell the same to her new counterpart before the marriage itself.

    3. This point will be decided by the court when the verdict is given. They will ask the opinion of the child also and see that where there will be more comfortable.

    4. The father has to approach the court again with the help of a lawyer and some guidelines will be given by the court and the same should be followed by both the parents.

    5. If the court has given the custody to the wife and after sometimes she dies, automatically the father will get the rights of keeping them unless otherwise, there is an objection from the father. If the mother writes something in her will about the children, that is to be followed.

    drrao
    always confident

  • Child custody can be filed during divorce proceedings or in cases of judicial separation. It is a method through which the court decides who should receive a child's custody. According to personal law, the laws of custody are different, but the main purpose behind the custody is always the same, and that is the welfare and interest of the child. Many times, if the court finds it, she can also give her custody to another person for the benefit of the child by not giving either of the two parents.

    1. If the couple is not divorced, but the couple is living separately and the husband is working abroad, in this case, if the child is less than 6 years of age, then he will remain with his mother in every situation but if the child is aged 7. If the year is over, then the father can apply for custody.

    2. The couple is divorced but the child was with the wife and now the wife is married to another man. If the child is less than 5 years old then the probability of getting custody of the child's father is very low because by 7 years the mother takes all the decisions of the children, that is, the mother's right is greater.

    3. The couple is divorced and has 2 children (one is 6 years old and the other is 3 years old). The father is still less likely to get custody of at least one child, but yes, the father can meet his children as per the orders of the court, in addition to this, the father is responsible for the necessary expenses for the children.

    4. If the child is with the wife and the father is allowed to visit them once a week or month and if the father is working abroad, and if the wife does not pick up the phone and allows the children to talk on the phone, Then the father can apply to the court to get the custody of the child, as well as the application that the court order is not being followed by the wife because the wife does not even allow the children to talk to their father.

    5. If in any case wife is dead then custody will be transferred to the father.

    The final decision in all cases will be with the court. The court considers the following aspects when deciding guardianship -

    -The private law under which action is taken against a minor.
    -The age, sex, and religion of the minor.
    -The character and capacity of the guardian proposed to the minor and the parents' intention for him.
    -Any wishes of the child's deceased parent, and any current or past relationship of the proposed guardian with the minor or his or her property.
    -If the minor is eligible to give preference to himself, the court may consider that preference.
    -The court shall not appoint or declare any person to be a guardian against his will.
    -The court considers it appropriate to keep all children together if two or more siblings are involved in custody.
    -Taking care of the child's comfort, health, material, intellectual, moral, and spiritual welfare.

    Swati Sharma

    Keep your Face to the SunShine

  • After a divorce, both the partners can retain parental responsibility for the children. This is applicable even after the termination of marriage due to divorce. If your child was born during marriage, you would like to have your parental responsibility even after divorce. In case, you are not in a position to continue such a responsibility, this may be intimated to the court for the further consideration.
    If your child is more than 12 years old, his views would also be taken into account in relation to his choice in the event of divorce of their parents. The court may ask children above 12 years old to give their opinion when the court takes a decision on parental responsibility. The child has the right to be heard. This signifies that they can tell the court what they think about certain matters relating to the break - up the ties.
    When the people talk about the parental responsibilities the following terms are sometimes mixed up. Some parameters are given below-
    1) Co- parenting- Co- parenting is only possible if both the parents are willing in the same direction. If you want to have the co- parenting, you and your partner should make an agreement regarding the period of stay of the child with each of the partner.
    2) Equal Parenthood - This would mean that the parents have equal rights and obligation in relation to the care and upbringing of the children. This would not mean that the child would leave each parent covering half the time originally alloted to him.
    3) Responsibility- It means that you are the legal representative and should have control over his or her money and property.
    4) Parental Acess Right - After the divorce, separation or termination of a registered partnership, the ex- partners would enjoy their parental acess right with respect to their children.
    The two partners can decide when, how often and for how long the parent with whom the child is not living can see the children. This agreement has to be incorporated into the parenting plan.


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