Child Custody Law
The law governing Child Custody cases in India, broadly, falls under following Act:-
- Guardian and Wards Act, 1890
- Section 26 of HMA
- Article 32/226 of Constitution of India in exceptional cases
PLACE WHERE CHILD CUSTODY CASE IS FILED
Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody to the exclusion of all other courts.
GENERAL CONSIDERATION BEFORE COURT WHILE DECIDING CHILD CUSTODY CASES BY THE COURT
All courts seized of child custody cases are duty bound to consider welfare of the minor child or children as the case may be. Parent seeking child custody has to prove that interest and welfare of the child shall be protected by him/her much better than the respondent/ opposite party.
Following are the broad parameters that court considers while deciding the issue of child custody:-
- Child’s proximity, closeness and love for the parent
- Whether uprooting of the child from one parent to another will be adverse to the interest and welfare of the child
- Educational qualification of respective spouses and of their immediate respective family members.
- Wishes of the minor child, if he can form opinion on his own
- Financial status of parties(Not too predominant as generally believed upon)
- Performances and achievements in curricular and co-curricular activities
- Overall behaviour and conduct of parties
PROCEDURE TO FILE CHILD CUSTODY CASE:
A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody. Notably, in child custody cases non-custodial parent seeks the custody/guardianship of the minor child. Such petition usually takes longer time and thus application for Interim or Temporary custody as well as Visitation Rights are also filed by the Non-custodial parent.
VISITATION RIGHTS implies regular meeting of the minor child with the non-custodial parent. General duration of visitation rights varies from 1-4 meetings per month.
INTERIM CUSTODY implies generally overnight custody or long hours of custody for a defined period to the non-custodial parent with undertaking to restore the custody of the child upon completing the defined time by handing it to the Custodial parent.
Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.
As stated above in certain situation and exigencies a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or a write petition under article 226 of the Constitution of India can be filed. Such exceptional situation would include but not limited to one parent unlawfully take the children from the custody of other parent or unlawful retention of the custody of the children by the other parent or custody granted by a foreign court but the father or the mother as the case may be has taken the child out of the jurisdiction of that foreign court or the country. Such petition is filed in nature of Writ of Habeas corpus for Child Custody. It is filed for the expeditious determination of the issue. It is not a full fledged child custody petition having but has limited jurisdiction. However, Supreme Court or High Courts are vested with extra ordinary powers/jurisdiction to determine the issue. Timing of filing such petition is utter importance.
- Child custody cases are emotionally taxing for parties, concerned counsels, as well as the Judge(s).
- Generally, the age of majority is eighteen years and in some cases it is twenty-one years.
- Nowadays courts often take the helps of experts such as counselors, psychologist or other specialist dealing with issues of child custody.
- It is extremely interesting to note that all judgements that attain finality bound parties with the final outcome. However, the decision or the judgements of child custody cases are never final. It is a departure from the general law. To explain further, Custody of Child has been awarded by judgement or by mutual consent to one of the parent. However, the welfare of the child is prejudiced by the acts and omission of the custodial parent then non-custodial parent can file child custody petition to reclaim the custody on the basis of change of circumstances concerning with the custodial parents adversely affecting the interest and welfare of the minor children.
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