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Custody of Children after Divorce: Types, Laws and Consideration

Advocate Bindu > Family Court Advocates  > Custody of Children after Divorce: Types, Laws and Consideration

Custody of Children after Divorce: Types, Laws and Consideration

A adult parent holding child hand in her hand

What is child custody?

The term child custody used under the family law means the legal guardianship of a child under the age of 18 years, when the parents have separated or died. In case of separation, the crucial decision is taken by the court in the best possible way so as to not affect the growth and the welfare of the child. The Indian child custody law states that both the parents have equal rights over the child even after separation which means that even though the custodial parent becomes the primary care taker, the non-custodial parent retains the right to meet the child. Same can be consulted by Child custody lawyers in Navi Mumbai with good experience.

Also read our new blog on Legality of Child custody in India with updated information.

Types of child custody:

  • Physical custody- where the kid is given over to the custodial parent for living and the other parent is permitted to visit, meet and interface with the youngster at customary stretches.
  • Joint custody- where the child lives with both parents on a rotational basis and the duration of stay may be based on mutual agreement between the parents.
  • Sole custody- where is child is handed over entirely to one parent when the court finds out that the other parent is abusive, unstable or incapable.
  • Third party custody- where the guardian or third person gets the custody of a child from court instead of the biological parents for the welfare of the child and is termed as non-parental custody.

Child custody laws

In India, the Guardian and Wards Act, 1890 has provisions relating to child custody after divorce and at the same time the provisions of the diverse religions relating to separation and child custody.

  • Custody under Hindu minority and guardianship act 1956, the mother is the original guardian of the child up to the age of 5 years. In case of male children above the age of 16 years and female children above the age of 14 years, the court considers their view which has been taken in the case of their welfare.
  • Custody under Muslim Personal Law (Shariat) Application Act, 1937,
    Mother’s right of hizanat: mother is considered the most important and appropriate guardian unless to disqualified due to unreasonable behavior. This right of the mother remains over the sons until he completes the age of 7 years. In case of Shias, custody right is till he attains the age of weaning while in case of Malikis it is till the age of puberty. In case of daughters, the Hanafis entitle custody till the she attains the age of puberty, however, in case of Hanabalis, Shafiis and Malikis, the custody continues until she is married. In case of absence of both the parent, the grandfather is entitled to custody.
    Father’s right to hizanat: On completion of the age by the child to which mother or other females are qualified for custody or in case of absence of such females.
  • Custody under Christian Law is settled by The Indian Divorce Act, 1869 which applies generally. Section 41 of the said act provides provision of custody of children with the order of separation in a suit.
  • Custody under Parsi law is under the provisions of the Guardians and wards Act of 1890 in which it is a well settled principle that the welfare of a child is paramount.

Factors considered by courts when deciding the matters relating to child custody:

  • The child’s welfare, comfort, health, growth and safety
  • Financial stability, intention and mental-physical wellbeing of the custodial parent/ guardian
  • The custody of younger children should be given to the mother unless she is disqualified. The personal law of the father should be taken in account relating sex, age and religion of the child.
  • The judge has the full right to choose what is best for the kid. The right to choose for themselves is given to children above the age of 9 years.

Since, every situation varies, one can get better understanding by visiting best family lawyer in Mumbai

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