Child Custody FAQ

Custody means the legal right to raise a minor child. Generally, both parents share joint custody. However, during separation or divorce, one parent can request sole physical custody, meaning only that parent will raise the child and make day-to-day decisions.

The custody of Hindu children is governed by:

(1) Hindu Marriage Act (Section 26): Courts can make decisions regarding custody.

(2) Hindu Minority and Guardianship Act: Custody of children under 5 years old should be with the mother.

(3) Guardians and Wards Act: This secular law provides for guardianship of the child and their property but does not address custody.

Custody decisions are made by the court based on each case’s unique facts and circumstances.

Physical custody refers to where the child lives and which parent is responsible for the child’s daily care and decisions, such as extracurricular activities and daily routines.

Legal custody involves the right to make significant decisions about the child’s life, including education, healthcare, and religious upbringing.

In India, it’s common for one parent to receive physical custody while both parents share legal custody, unless the court deems one parent unfit for legal custody.

For children under 5, custody usually goes to the mother unless she is deemed unfit.

For children over 5, custody can go to either parent. Courts often prefer the mother as the primary caregiver but will consider the child’s best interest and specific circumstances.

Courts focus on:
(a) Child’s Welfare: Which parent can provide a safer and more nurturing environment. This includes emotional, educational, and financial stability.

(b) Child’s Preference: If the child is mature enough, their preference is taken into account.
The child’s welfare is the top priority, surpassing the parents’ wishes or opinions.

No, custody is not automatically given to the mother. The court will consider if the mother is fit to care for the child. Factors like alcoholism, mental health issues, or other concerns may result in custody being awarded to the father or another guardian.

Yes, custody can be awarded to a non-parent if it’s in the child’s best interest. For example, if the child has been living with grandparents and wishes to stay with them, the court may grant them custody.

To improve your chances, demonstrate:
(a) A Stable and Safe living environment.
(b) Good moral character and maturity.
(c) Financial stability and the ability to support the child’s needs.
(d) A strong, positive relationship with the child.

You can request custody at any point during divorce or separation proceedings. Include this request in your initial petition or file a separate application if needed.

File for custody in the same court where your divorce or separation case is being heard. This keeps all related matters in one place.

Parents have custody until the child turns 18 years old. After that, the child is legally considered an adult and can decide where to live independently.

Interim custody is temporary custody granted while divorce or separation proceedings are ongoing. Since these cases can take years, interim custody ensures the child has a stable living arrangement until a final decision is made.

The same factors as permanent custody, focusing on the child’s welfare and best interests.

Yes, interim and permanent custody can be awarded to different parents if circumstances change significantly and it benefits the child’s welfare.

Visitation rights allow the non-custodial parent to spend time with the child. This ensures that both parents maintain a relationship with the child, even if one does not have physical custody.

Visitation rights vary. For instance, if both parents live in the same city, the non-custodial parent might get weekend visits. If they live in different cities, visitation might be during school holidays.

Courts consider:
(1) The child’s age and ability to travel.
(2) Distance between parents’ homes.
(3) The child’s school schedule.
(4) The relationship between the child and the non-custodial parent.

Courts generally want both parents to have contact with the child unless visitation would harm the child. You can request supervised visits if you have concerns about your child’s safety.

Yes, the court can change custody if circumstances change and it benefits the child. Any concerned party, like the other parent or close relatives, can request a custody change.

No, remarriage alone does not lead to losing custody. Custody is only reconsidered if the new situation negatively impacts the child’s welfare.

If you have physical custody, you can make day-to-day decisions for the child, like activities and routines. Major decisions, like education and healthcare, usually require agreement from both parents if they share legal custody.

You can ask the court for supervised visits or visits in a safe, neutral location. Courts will prioritize the child’s safety.

Courts aim for the child to maintain relationships with both parents unless visitation is harmful. A child’s reluctance alone isn’t enough to stop visitation rights.

You can apply to the court for a custody change. Courts will consider the child’s preference, especially if it’s in their best interest.

No, major decisions like schooling require agreement from both parents if they share legal custody.

Both parents share responsibility for the child’s expenses, proportionate to their incomes. The non-custodial parent may pay maintenance if needed.

No, visitation and child support are treated separately. You can file a contempt case for unpaid child support.

Sons: Until they reach adulthood.

Daughters: Until they get married, even after reaching adulthood.

No, financial status alone isn’t enough for a custody change unless the current arrangement affects the child’s welfare.

Yes, both parents must contribute to the child’s expenses based on their incomes, regardless of the other parent’s financial status.

The court considers the parents’ financial status, the child’s needs, and what is reasonable based on the family’s situation. This includes school fees, daily expenses, and special activities.