Child Custody Laws: What every parent should know

Child Custody is one of the most sensitive and emotional parts during a separation or divorce. Child custody refers to the legal arrangements that specify who will care for the child, where the child will live, and who will make decisions regarding the child’s welfare. In India, when a marriage ends, the most important consideration is the child’s welfare, and both parents usually want custody.

It is important for every parent to understand how custody works so that we can protect the child’s best interests and know what our rights are. Many individuals believe that custody goes to the mother, or that fathers have no rights, both of which are false. The Indian courts give no automatic preference to one parent or the other because the most important factor is the welfare and happiness of the child.

If you are going through a divorce, or just want to understand what your rights are as a parent, this article will give you an insight into what to expect and how to best ensure what is best for your child.

Legal Framework for Child Custody in India

In India, child custody law varies by religion and is based on personal laws as well as secular laws. Regardless of the religion or gender of the parents, child custody laws seek to protect the best interest of the child.

1. Hindu Law

The custody arrangement for Hindus (including Sikhs, Buddhists, and Jains) is governed by:

• The Hindu Minority and Guardianship Act, 1956, and
• The Guardianship and Wards Act, 1890

The natural guardian of a child below the age of five is usually the mother, however custody may be awarded to the father, or even a third party, if it is in the best interest of the child.

2. Muslim Law

Muslim personal law is not found in a single code. Under Muslim law,

• The mother is granted custody (called hizanat) of minor children until a certain age,
• The father retains the natural guardianship, and
• The courts may disregard these customs if the welfare of the child is in danger.

3. Christian and Parsi Law

Custody matters for Christians are governed by the Indian Divorce Act, 1869. Custody matters for Parsis, for example, are regulated by the Parsi Marriage and Divorce Act, 1936. In both cases, the court decides on custody matters to serve the best interest of the child.

4. Guardians and Wards Act, 1890

This is a secular law applicable to all religions. When personal law is not able to provide a solution the Guardians and Wards Act, 1890 is applied. It gives family court custody powers, to order guardianship and custody as per requirements for the physical, emotional and moral welfare of the child.

Types of Child Custody in India

In India, child custody does not imply one parent gets complete control over the child. Custody is decided based upon the best interests of the child in respect to their upbringing and emotional well-being. Here are the four main types of custody:

1. Physical Custody

This is the most common type of custody. The child lives with one parent (likely the custodian parent), while the other parent receives visitation rights. The custodial parent is responsible for the day to day needs of the child such as schooling, education, etc. The non-custodial parent can now visit with the child based on some pre-arranged times.

For example, a child lives with mother but visits father only on weekends and during holidays.

2. Joint Custody

Upon joint custody, both parents share physical custody of the child. The child may reside alternatively at each parent’s house at a few days or a week at a time. Both parents will also be jointly engaged in parenting duties and decision making. Joint custody enables the child to foster strong relationship with each parent.

For example, child stays with father from Monday through Thursday, they stay with mother from Friday to Sunday.

3. Legal custody

Legal custody is the right to make a significant decision regarding the child’s life, for example, education, healthcare, religion, and future planning. Even if one parent has physical custody of their child, there can be joint legal custody.

For example, the mother has physical custody of her child, but she and the father jointly share the decision regarding what school the child will attend.

4. Third-Party Custody

If the parents are found not fit (by way of violence, neglect, or mental health issues) then custodians can be established through a third party such as grandparents or other family members.

For example, both parents are suffering from addiction and the maternal grandmother would be awarded custody of the child.

The type of custody should align with the child’s best interest and serves different purposes, each decision made with careful consideration after considering and weighing possible issues.

IV. How Courts Decide Custody

Indian courts do not provide automatic custody to a mother or father. The court first looks to determine the various factors which are in favor of the child. To do this, the court examines every relevant piece of evidence in order to determine what will allow the child to have the ability to develop in a healthy, nurturing and secure environment.

Important factors that the court considers:

1. Age and Gender of the Child
2. Younger children (generally children under 5 years of age) are typically placed with their mothers; however, this is not a hard rule. 
3. In respect of older children, the court also considers how comfortable the child feels with each parent and the child’s attachment to each parent.
4. The child’s emotional bond and attachment.
5. The court will see which parent the child is more emotionally attached to.
6. It can do this by ordering child counselling or asking people in that child’s life (teachers, daycare workers) for their opinions.
7. Financial Situation
8. The income of each parent becomes a consideration but the richer parent does not automatically get custody of a child.
9. What matters is whether that parent is capable of providing for the child with stable, consistent and appropriate living arrangements.
10. Living Conditions and Lifestyle
11. The court looks at the physical and mental settings in both parents’ homes, including safety, education options, and health care options.
12. Child’s Preference
13. If the child has enough maturity (usually beyond 9-12 years old) their wishes are taken seriously.
14. Parental Conduct
15. Any past incidents of domestic violence, alcohol abuse or neglect against the parent can be used against the parent.
16. The court does not encourage parents to speak negatively about one another in front of the child.

In most cases, the court will use psychologists, counsellors or social workers to assess the emotional state of the child and make a recommendation based on the best custody situation.

The court’s goal is for the child to be able to grow up in a loving and balanced environment amicably with his or her parents, regardless of them being separated.

Custody under Divorce and Separation

Custody of children is a huge issue in divorce or separation. In India, custody is determined either through a mutual divorce or a contested divorce.

Custody in a Mutual Divorce

In a mutual divorce, if both parents agree to end the marriage on amicable terms, they are free to mutually agree who will take custody of the child. In most cases, if an agreement is determined to be in the best interests of the child, the judges typically accept it. The parents could agree that one parent has full custody with visitation rights to the other parent, or they could agree to a joint custody agreement.

The court will examine the agreement to ensure: It was not coerced or unreasonable and the welfare of the child is maintained.

Custody in a Contested Divorce

In a contested divorce, one parent has filed for custody and the other may oppose custody. In contested cases, the court takes a detailed assessment of each parent’s ability to deal with their parental responsibilities. In contested custody proceedings, the court may:

1. Appoint a child welfare expert,
2. Request home studies,
3. Interview the child if they are old enough.

Prime Custody

While divorce proceeding is ongoing, the court can order a prime custody arrangement to award one party interim custody to allow the child to have some semblance of stability, and this arrangement could later be modified based on the court’s final order and orders they subsequently make.

Check out these case scenarios:

In Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228, the Supreme Court found, among other things, that mothers are among the natural guardians under Hindu law.

In Roxann Sharma v. Arun Sharma (2015) 8 SCC 318, the court awarded custody to the mother because she had been the child’s primary caregiver before the divorce and, consequently, there was no need for a custody change.

These cases illustrate that Indian courts are concerned about the needs of children not the status quo of the law with regard to parenthood.

Visitation Rights and Parenting Plans

Generally, if one parent is given custody, the other parent has a legal right to have contact with the child. This is called visitation rights. The court wants both parents to remain active in the child’s life unless there is a reason to believe it is dangerous for the child.

Visitation

The visitation time for the non-custodial parent will be limited to specific allocation of time, for example:

1. Weekends or alternate weekends
2. School holiday or summer vacation
3. Special holidays including birthdays and festivals.

The court will not want to disrupt the child’s routine nor will they want both the child and parent to be uncomfortable during these visitations.

Parenting Plans

Some courts are now promoting parenting plans in which both parents fully agree, in writing, on the following three items:

1. Where the child will reside
2. How time will be shared
3. How decisions are made
4. How disputes are settled

The court will review these plans and they will become part of the final custody order in the case. Parenting plans help to avoid future complications, and assure cooperative parenting for the purpose of the child’s development.

 Penalty Denying Access

If one parent refuses to comply with a court visitation order, the other parent may apply to the court for a contempt of court petition. Similarly, repeated and willful violations of parenting time orders may lead to changes to parenting time or custody altogether.

Can Custody Be Changed Later?

Yes, custody orders are not set in stone, as they may be altered if a significant change occurs involving the child, or the situation of either of the parents. Indian Courts allow either parent to seek to vary their custody orders, under the Guardians and Wards Act, 1890, if changed circumstances arise.

When Will Custody Be Changed?

• The custodial parent cannot care for the child anymore
• The child is being neglected, abused or emotionally harmed
• The custodial parent remarries or begins relationships in a new environment where the new environment is not tolerable
• The child has a strong wish to be with their other parent (more likely if child is over 9–12 years old) 

How to Apply To Vary Custody Arrangements

The parent concerned must make an application in family court, where the court will review the needs of the child and the situation. Again, the welfare of the child is paramount. This system provides some flexibility in changing orders to protect the welfare of the child, given reduced certainty, risk and uncertainty.

Common Myths about Child Custody

There are lots of people that think courts only give custody to mothers, and they do not. More often now, courts look to see who can provide better care for the child, not simply whether it is the mother or the father.

Another perception is that fathers have no rights but they do. More commonly, courts will allow regular visitation with the other parent to allow the child to stay close to both parents.

Some people believe custody is forever. Yes, many parents do sadly lose custody, but parents can also have their custody changed because life happens like a move, a new job, new relationship etc.

What makes a case is a single concept and only with sole focus on one idea and that is what keeps the child safe, happy and healthy.

FAQs about Child Custody Laws in India