Introduction
If a marriage breaks down and ends up in separation of a couple, the person(s) who suffers the most is the child or children born out of the marriage. The Indian Law,
while keeping in mind the parents’ right to the custody of a child, holds the welfare of the child as the most important factor of consideration when deciding upon
who gets the custody of a minor child.
What Are The Factors That Constitute “Welfare” Of A Child
Welfare of the child, broadly, includes the following factors:
Safe-keeping of the child
Ethical upbringing of the child
Good education to be imparted
Economic well-being of the guardian
Where Does A Minor Child Go After A Divorce?
The mother and father both have an equal right to the custody of a child. Who gets the custody of the child, however is a question which the court decides upon. While
the statutes are conflicting when it comes to personal laws as opposed to secular enactment in the form of The Guardian and Wards Act, 1890, the court of competent
jurisdiction strives to strike a balance between the two, all the while holding the welfare of the child as the paramount importance. However, just because the custody of
a minor has been awarded to one parent, it does not mean that the other parent cannot see or be in contact with the child. The courts in India are very strict to ensure
that a child gets the affection of both the parents. The other parent gets visitation rights, the conditions of which are determined by the court.
Types Of Child Custody Arrangements In India
Primarily, a court of competent jurisdiction in India orders the custody of a child in the following three forms:
Physical Custody
Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other
parent. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during
his formative years.
Joint Custody
Joint custody of a child does not mean that the parents will both live together because of the child even though that what Indian courts believe is best for the welfare
if a minor. It simply means that both the parents will take turns keeping the child in their custody. The rotation of a child between the parents’ custody may vary from
certain days or a week or even to a month. This not only benefits the child as the affection of both the parents is not lost and the parents also get to be a part of their
child’s life in those young years.
Legal Custody
Legal custody of a child differs from physical custody in more ways than one but the fundamental difference between the two is that legal custody does not necessarily
entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent granted the legal custody takes every
decision for the child. From where will the child study and what doctor will the child be treated by is part of legal custody. In most instances, courts grant legal custody
to both the parents together but if the divorce is messy and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the
child to one parent.
How Does One Know That What Type Of Custody Has Been Granted?
Unless and until the order of the court specifically mention conditions similar to the ones discussed above, the parent who is awarded the custody of a child is not just
awarded the physical custody but also the legal custody. Any other type of custody will be specifically mentioned in the order of a court and made clear to both the parents.
Who Can Claim Custody Of A Child?
The custody of a child can be primarily claimed by either the mother or the father. In case either of the two are deceased or not in the picture because of operation of
any other law, the maternal and paternal grandparents, any other relative(s) of either of the parents strictly out of compassion towards the child can seek custody of
the child. The Court can also appoint a third person to be the guardian of the child.
Who Has The Priority Claim To The Custody Of A Child?
The Hon’ble Supreme Court and other courts in India have reiterated time and again that in the proceedings for custody of a minor, the welfare of the minor is the only
consideration, irrespective of the claims of the parties to the custody.
Who Will Get The Custody Of A Minor If The Mother Is In A Weaker Financial Condition As Compared To The Father But The Father Has Remarried And Has Kids?
The Mother of a minor cannot be discarded as the guardian just because she earns less than the father. The father has to provide for the child’s maintenance in such a
case as it is a well-established principle of law that a step-mother has primary obligation of affection towards her own children and the father would be at work all day,
and hence, the mother would be the better guardian for the welfare of the minor child.
Who Will Get The Custody Of The Child If The Father Has Been Accused Of The Mother’s Murder?
If there ever exist, such circumstances, the custody of the child is given to the maternal grandparents if the welfare of the child best lies with them. The paternal
grandparents can also claim the custody of the child but the onus to prove that the welfare of the child lies best in their custody is on the petitioner.
Conclusion
The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right
holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with
them.