Custody disputes can be one of the most emotionally and physically draining aspects of a divorce. Even though separation itself can be difficult, determining who will have custody of a child can be even more difficult. The thought of the pain and suffering endured by children during this process intensifies the parents’ anguish.
Custody is commonly referred to as guardianship, and it is one of the first things divorced parents consider. Each parent has their own reasons for seeking custody, including the division of parental assets, financial support for the child’s education, and visitation rights, among others. However, the Supreme Court has determined that the child’s “best interest” is the most important factor in determining custody. According to the Honourable Mr. Justice Vinod Prasad, the welfare and interests of the child trump the rights of the parents.
According to Indian child custody laws, even after legal separation, both divorced parents have equal rights over the child. Gaining custody merely signifies that the child will reside with one parent while the other parent retains visitation rights. The custodial parent assumes primary responsibility for the emotional, medical, and educational needs of the child. In contrast, the non-custodial parent maintains parental rights.
A frequently asked question is whether mothers have the upper hand in child custody disputes in India. Only two of approximately ninety divorce cases in a given year granted custody to the father, according to the data. In many instances, fathers believed that they could only file for custody once the child reached a certain age. However, custody decisions are made on a case-by-case basis, with courts giving priority to the child’s best interests over the parents’ rights.
In the case of shared custody, both parents must determine how much they will each contribute to the child’s expenses, including unexpected costs. A judge or mediator can decide how they will divide the child’s financial expenses. The split does not have to be 50/50, and if one parent earns more, they can contribute more. It is preferable to have a clear understanding of how much one is expected to pay, despite the fact that each circumstance is unique.
In India, child custody laws vary depending on the religion of the parties. The Hindu Marriage Act of 1955 (Section 26), the Special Marriage Act of 1954 (Section 38), and the Hindu Minority and Guardianship Act of 1956 Only the mother is permitted to seek custody of her child(ren) under the right of hizanat under Islamic law. Section 41 of the Divorce Act of 1869 permits child custody under Christian law only after a separation decree has been issued. Child custody is permitted under the Guardian and Wards Act of 1890 under Parsi law, which places a premium on the child’s welfare.
There are various types of child custody, including sole custody, joint custody, and physical custody. In situations where the court determines that one parent is abusive, unstable, offensive, or incapable of caring for the child, the child may be given to the other parent. In some instances, custody may be awarded to a third party instead of the biological parents.
Child custody disputes can be emotionally and physically draining. The entire process requires parents to prioritise the future of their child when making a final decision. Courts frequently consider the decisions of children older than nine years old. When the child is younger than 5 years old, the mother is typically awarded custody.