The issue of Parent-Child Custody.


What is Child custody?

The custody of a child is decided by keeping in mind its welfare. Many of us have heard a lot about parent and child custody battles. In the news especially there keep coming reports of how wives and husbands quarrel in court regarding who should keep the child? Such custody battles are common in divorce cases where when the husband and wife are partying ways, the court has to decide who will the minor child to stay with.

It is important to note that a custodial battle between the husband and the wife largely arises when the children are minor, that is they are less than 18 years of age. Once the child crosses the age of 18 years, he or she is considered to be an adult and is free to make his way in the world.

What factors does the court keep in mind while deciding the issue of custody?

While deciding the question of whether the mother or the father should have the child’s custody, the court has to keep in mind the welfare of the child. By the term welfare, it is meant what factors would facilitate the physical, moral, spiritual and intellectual development of the child. This means that the court will look into the question of which parent is capable of providing a nice house to live in, quality education, financial support for food and education and other critical factors pertaining to the life and well being of the child. Once the court is satisfied that either the mother or the father has an advantage, it will award custody to the concerned parent. It is important to note that ordinarily the custody of the child is supposed to vest with the mother. However, in certain cases where the court feels that the mother is not capable of taking care of the child, it can award custody to the father.

Can a parent be stripped or denied child custody?

Yes, in certain cases the court has the power to cancel the custody of the child and give it to another parent. For example, if a mother has child custody and the court sees that the mother is an alcoholic, has a criminal record or is in major financial doldrums and is not able to take care of basic expenses of a child then the court has the power to transfer the custody of the child to its father. It is thus clearly evident that the primary factor in deciding who should get custody of the child is the welfare, upbringing and securing a positive and healthy environment for the child.

What is the meaning of the welfare of the child?

By the term welfare of the child, it means that the concerned parent should be able to provide a positive, healthy and prosperous environment for the upbringing of the child. It is the vision of the constitution of India that every citizen should grow up and achieve the maximum of his potential in life. The Constitution of India also requires that proper care should be taken for the well-being and upbringing of young children because they are the future of the nation. Therefore the term welfare of the child has an extremely wide connotation and includes many factors within its fold.

Can mere financial resources guarantee a parent, child custody?

No. Just because one parent is richer than the other does not mean that he or she automatically stands to get custody of the child. This is because mere money alone does not guarantee that the child will grow up into a good, successful and well-being citizen. There are many aspects to life other than money or rather beyond money and hence the term welfare of the child has a much wider meaning which will include all necessary factors relevant for the evolution and growth of the child’s physical, intellectual and spiritual abilities.

Therefore, if a parent fighting a divorce battle wants to obtain custody of his child, he should be able to prove to the court that he has the much better aptitude, resources, and ability to bring up the child vis a vis the estranged spouse. To this effect, the parent should be able to demonstrate that he will be able to inculcate moral values in the child, cultivate an intellectual bend of mind and ensure that the child does not go astray and fall into bad habits. If he can prove these ingredients to the satisfaction of the court, then his chances of successfully obtaining the custody of the child increase manifold.

Which court is competent to hear cases of child custody?

In major cities of India such as Mumbai and Delhi, wherever the family courts have been constituted under the family courts Act Section 6 of the Hindu Minority and Guardianship Act 1956. It is that court that will have jurisdiction to hear disputes of child custody. Any parent whose relationship is on the rocks and wants to obtain custody of his child can file a petition under the Hindu Minority and Guardianship Act with the prayer for granting custody of the child. Once this petition is filed, the family court will first refer the case for counseling in order to facilitate the settlement between the parties. If the counseling is unsuccessful, the court can direct the parties to file their rejoinders and keep the case for final hearing

In certain cases of urgency where the parents feel that the child’s life, health or well being is at risk, he can also file an interim application seeking an urgent hearing and pray for temporary custody till the disposal of the case. If the honorable family court is satisfied that a situation of grave urgency is made out and the welfare of the child will lie with that parent, it can pass an interim order directing the custody of that child to be with that particular parent till the time the case is finally decided.

For those cities or areas where the family court has not been constituted, it will be concerned civil court which will have jurisdiction to hear cases of child custody.

Conclusion – The way forward:

Thus it is the right law that the welfare of the child is the paramount consideration for the court which hears the case of child custody between opposing parents. In order to ensure that he or she gets the custody of the child, the parent should take every possible step and demonstrate to the court that he or she will be able to take care of the child, look after him or her and ensure that till the time attains majority the child will have access to a safe and healthy environment which will help in his moral, physical, spiritual and intellectual development. It would be pertinent to remember the judgment of King Solomon who held that the woman who was willing to let go of the child rather than see it die was entitled to its custody. Therefore in any dispute over child custody, the parents should not consider their children as chattel and instead stand by them and keep them providing the necessary love and affection because ultimately the scales of justice shall favor those who approach the court with clean hands.

Cases argued by Aditya Pratap

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Advocate Aditya Pratap
About Advocate Aditya Pratap 60 Articles
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.