In divorce proceedings, the most complex and emotionally drenching issue is that of child custody. Children, young and at times infant have to bear the pain for no fault of theirs. Due to the extreme emotional attachment, both parents want to keep the custody of the children. In Indian set-up, such question is decided by the court of Guardian and Wards. Welfare of the children is the paramount consideration before the Court while deciding the question as to who is entitled to have the custody of children. Custody of children can be divided in to three parts:
- Permanent Custody: After determining all issues, Court grants permanent custody of children to one of the party.
- Interim Custody: During the pendancy of the case and otherwise, court can grant interim custody to one of the spouse. It is also possible that Court grants interim custody of children to the other parent at the times of vacations, holidays etc.
- Visitation Rights: Every parent has inalienable right to meet and see his/her children. Even after winning the case of custody of children by one parent, other parent can not be denied the right to meet and see his/her children. In disposing of such cases, Court awards reasonable visitation right to the other parents and fix up the time and days for the meeting with his/ her children so that the emotional ties are not broken between the child and the other parent.
Kinds of Child Custody Arrangement In India
A court of competent jurisdiction in India primarily orders the custody of children in the following three forms:
1. Physical Custody
Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with periodical interaction and visitation with the other parent. The target behind such a custody award is to give a better life to the child in a safe and fulfilling environment and also makes sure that the child is not deprived of the affection of the other parent during his or her formative years.
2. Joint Custody
Joint Custody of a child does not implies that both the parents have to live together because of the child despite the fact that Indian courts believe that it is the best for the welfare of a minor. Joint custody actually means that both the parents will take care of the child turn by turn keeping the child in their custody. The rotation of the child among the parents may vary from certain days or a week or even for a month. These benefits the child as on one hand the child gets the attention of both the parents and on the other hand parents get to be a part of their child’s life.
3. Legal Custody
Legal custody of a child does not necessarily entails having the child with the parents or vice-versa. It basically means that the parents are granted the legal custody and they can take every decision for the child likewise education, medical treatment, etc. In most of the cases, legal custody is granted to both the parents together but in certain cases where the divorce is messy and parents do not agree with each other, then in such cases the court grants legal custody to any of the one parent.
How To Know The Type Of Custody Granted?
Till the time the order of the court does not specially mentions the conditions discussed above, the parent who is awarded the custody of the child gets the physical custody as well as legal custody. If there is any other kind of custody awarded, it will be mentioned in the order of the court and will be made clear to both the parties.
Who Can Claim Custody of A Child?
The custody of a child can be claimed either by mother or the father. In any of the case where the two of the parents are not in the picture due to operation of some other laws or deceased then in such situation, the maternal or the paternal grandparents or any other relativescan claim custody of the child strictly out of compassion towards the child. In many cases, the court appoints the third person as 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 repeatedly mentioned that for the custody of a minor, the only consideration is the welfare of the minor, irrespective of the claims of the parties to the custody of children.
Under Hindu law and as well as Secular law, the custody of the child under the age of five is usually awarded to the mother. In most of the cases fathers gets the custody of the older boys and mother of the older girls. Moreover, child’s interest is the main criteria and the choice of the child above the age of nine is considered by the court. Wherein a mother if found to ill-treat and neglect the child is not given custody.