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CHILD CUSTODY

The custody of a child after divorce is a sensitive issue. Children often experience emotional trauma when their parents separate. The question of custody arises after the legal dissolution of marriage.

Custody refers to the right granted by the court to one parent to care for the child (below 18 years). The custodial parent is responsible for the child’s financial, emotional, and physical well-being. The other parent is usually granted visitation rights. Courts always prioritize the best interests of the child while making custody decisions.

Factors Contributing to the Welfare of a Child

Proper moral and ethical upbringing
Assurance of safety and security
Access to quality education
Financial capability of the guardian

Rights of Parents Over a Minor Child After Divorce

Both parents have equal legal rights over their minor child post-divorce. However, the family court makes the final determination based on the child’s welfare. The Guardian and Wards Act, 1890 governs custody proceedings and ensures that the decision balances both parents’ interests while prioritizing the child’s benefit.

Forms of Child Custody in India

1. Physical Custody

The child lives with one parent, while the other is granted visitation rights. This ensures a stable environment and continued access to both parents.

2. Joint Custody

The child alternates time between both parents. This arrangement helps maintain emotional bonds with both sides and prevents either parent from feeling excluded.

3. Third-Party Custody

When neither biological parent is fit, custody is granted to a third party (such as a grandparent or relative) in the best interest of the child.

4. Sole Custody

Sole custody is awarded to one parent when the other is deemed unfit due to violence, abuse, or negligence.

Determining Custody Priority

The Supreme Court and other courts in India emphasize the child’s welfare as the ultimate criterion. Custody of children under five is usually given to the mother; older boys often go with the father, and older girls with the mother — unless exceptional circumstances apply. The child’s preference may also be considered if they’re mature enough to express it.

Custody Under Various Personal Laws

Under Hindu Law

Governed by the Hindu Minority and Guardianship Act, 1956, the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. These define custody rules and the process of determining guardianship.

Under Muslim Law

Custody typically remains with the mother until the child reaches seven years of age, after which the father becomes the natural guardian.

Under Christian Law

Custody decisions are made under Section 41 of the Divorce Act, 1869. The court’s focus remains the child’s welfare and the parents’ fitness to provide proper care.