Questions Legal

How do courts determine who gets custody of children in a divorce?

Airtract

Vanita Manohar

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The number of divorce cases in India is now increasing and so are the cases related to child custody. When a marriage dissolves and the couple separates, the person(s) who needs to face the biggest hurdles in life is none other than the child or children of the divorced couple. As per the Indian Law, one of the parents is given the’ right of custody of the child. But the court gives the custody after making an in-depth analysis of the welfare of the child. Who will get the child custody depends largely on the child’s wish and his or her future prospects and wellbeing.

Custody of the child, in case of parents divorce, will imply the fact as who will be the parent with whom the child will reside physically. No discussion on the custody case is done about the natural guardianship of both parents in court.   The parent who will get the custody will act as the primary caretaker for the child who will be responsible to take care of the emotional, educational and medical needs of the contested child.  On the other hand, the non-custodial parent will have the full legal rights on the child and will have the right to meet and spend time with the child with mutual consent of the caretaker.

In case the child for whom the contest is going on is an infant than by default court will give the custody to the mother, until and unless it is proved by the father that she is incapable to take care of the child. For the infant, custody will always remain with mother irrespective of the fact as who among the two filed for the divorce. The father will always get visiting rights. After attainment of 7 yrs of age of the child, the father can again file the petition of child custody and battle it out in court. The father will be instructed to pay a certain amount of money for the child maintenance to his ex-wife. 

There are different types of child custody which is given by the court;

Legal custody: Power given to one of the 2 parents to make a long-term decision about the child’s future.

Physical custody: This custody is given to that parent with whom the child will stay on a daily basis.

Sole custody:  This custody is given to one parent on a permanent basis especially in the case when the other parent is abusive in nature.

Joint Custody: It’s a common arrangement between divorced partners authorized by the court where a child can spend time with both parents in their respective individual houses

The court will take time to read and understand the petition of both parent in case of contested custody and will give the verdict which the ex-couple need to follow

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