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Father or Mother, Who Gets the Child Custody After Divorce

Child custody is an issue that often comes from situations such as divorces, annulments, and court actions that involve children. However, the problems involving the custody of the kids will be based on what the courts choose the most beneficial for the child's interests.

The child's natural guardian has the right to custody, but this right is not absolute, and courts are expected to weigh the minor child's interests.

Who Will Have the Custody of Minor Child After Divorce?

"Custody of a child shall be handed over to such a person who fosters him with care, love, and affection." - Hon'ble Justice Vinod Prasad

The Guardians and Wards Act of 1890 provides the court with entire authority over the selection of a child's guardian. In popular usage, this is referred to as legal custody.

Other terms for custody that are commonly used in everyday conversation include:

  • Sole custody, in which one parent is the sole caretaker of the child;
  • Joint custody means that both parents are responsible for the child.
  • Third-party custody, in which the child is entrusted to someone other than the parents such as grandparents.

When a youngster is bribed, things get complicated, but no one can avoid the courts. The legacy of property transfer on the child is also a shared concern among the feuding parents. Custody of a child, on the other hand, does not mean that the youngster owns any property. Even in circumstances of live-in partnerships or legal marriages, this is undisputed.

The Considers these important factors:

  • The custodial parent's financial stability
  • The custodian's intention (any Malafide, i.e., wrong or false intention that may harm the child);
  • The child's comfort with the said parent, especially as the child grows older;
  • The judge has complete authority to decide what is best for the child.
  • It is not the child over whom parents can fight or assert authority; it is not the child over whom parents can assert authority.
  • The child is not a source of inheritance in situations of divorce and maintenance;
  • The court ensures that the child is not exploited and that their health is protected by its judgement.

3 Types of Child Custody Arrangements in India

In India, the court of competent jurisdiction orders the children custody in one of three ways:
  • Physical Custody

    When a parent is granted physical custody, the minor is placed under that parent's guardianship, with periodic interaction and visitation with the other parent. The goal of a custody award like this is to give the child a better life in a safe and fulfilling setting while also ensuring that the youngster does not miss out on the affection of the other parent during his or her formative years.
  • Joint custody

    Despite the fact that Indian courts believe it is ideal for a minor's welfare, joint custody of a child does not imply that both parents must live together because of the child. Joint custody means that both the parents will take care of the child turn by turn while the child remains in their possession. The child's rotation between the parents can last a few days, a week, or even a month. This benefits the child since, on the one hand, the youngster receives both parents' attention, and on the other side, parents are able to participate in their child's life.
  • Legal Custody

    Legal custody of the child does not always mean that the child will live with their parents or vice versa. It basically indicates that the parents have legal custody of their child and are able to make all decisions about the child's medical treatment, education, and other matters. In most circumstances, legal custody is usually granted to both parents simultaneously. However, in some circumstances, where the divorce is tumultuous and the parents cannot agree on anything, the court will assign legal custody to one of the parents.

Relevant Sections for Child Custody Litigation:

  • Section 21 of the Domestic Violence Act: Child Custody
  • Child custody is governed by Section 42 of the Divorce Act.
  • Child custody is governed by Section 38 of the Special Marriage Act.
  • Child custody is governed by Section 12 of the Guardian and Wards Act.
  • Child custody is governed by Section 26 of the Hindu Marriage Act (HMA).
  • Child custody is governed by Section 49 of the Parsi Marriage and Divorce Act.
  • Child custody is governed by Section 6 of the Hindu Minority and Guardianship Act (HMA).

Bare Acts That can be Invoked:

  • The Divorce Act
  • The Special Marriage Act;
  • The Domestic Violence Act.
  • The Guardian and Wards Act;
  • The Hindu Marriage Act (HMA);
  • The Parsi Marriage and Divorce Act;
  • The Hindu Minority and Guardianship Act (HMA);

In India, custody is not a black-and-white issue, and judges make decisions on a case-by-case basis. When it comes to child custody, the welfare of the child is of paramount importance. A kid is neither a chattel nor an article of personal property that can be divided in half.


Suggested Articles on Child Custody Laws:

  1. Child Custody
  2. Child Custody Laws In India
  3. Child Custody & Guardianship
  4. How is Child Custody Determined?
  5. Custody Of Minor Under Indian Law
  6. Most Important Factors in Child Custody
  7. Child Custody - Read Before You Leap
  8. Custody Of Child: Gender Neutral Arena
  9. Child Custody under Hindu, Muslim, Christian and Parsi Laws

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