How To File A Child Custody Case?

The custody of a child is a very serious issue of society. The dispute on custody of a child mostly arises after the separation or divorce. 

Parents have a legal right for the custody of their child. But it is not necessary that parents will take custody; sometimes courts provide child custody to the person other than the parents. 

It can arise when parents are incapable of taking care of the child due to any reason by the court. In that situation, the court appoints a legal guardian. The custody of a child is a very sensitive issue. 

Courts take precautions during providing the custody of a child. Many laws help in deciding the custody of a child so that the child will be developing in a good environment.

What Is Child Custody?  

Child Custody means a legal right to raise custody of the child by the person who wants to take the custody of the child. When making a custody decision, the court takes the welfare and best interests of the child into account.

Why Is It Necessary?

The Child Custody is important for the welfare of the child, to provide the best environment for the child. If a child is living in a toxic environment then it leads to the worst condition of the child. Many times people do not focus on the child’s condition and the environment provided for the child due to which the child became criminal, toxic development, go into depression and anxiety, they don’t know what is wrong and right. It is very necessary that the custody of the child shall be in good hand.

Is The Guardianship Rights And Custody Rights Same?

• The guardian right and custody right are similar but not exactly the same. In guardianship, the court provides the individual one to take care of the child and his property. There are many laws which help to provide guardianship.   
• Whereas, in custody, if parents are not together or decide to separate in that case the court provides the right to the person who will take care of the child.

Laws Related To Child Custody

India has a rich heritage of different cultures and religions. So there are many laws which help in child custody in India based on their personal laws or customs.

Hindu Marriage Act, 1955

The section 26 of this Act, court provides the care, maintenance of the custody and even regarding education of the child.

Hindu Minority And Guardianship Act, 1956

The laws provided under this Act regarding the welfare of children. It is established that the father is the natural guardian of the child and after his death; the mother is the natural guardian of the child.

The Guardian And Ward Act, 1890

If the Christians, Sikhs and Parsis want to take the child in custody, they file the case under this Act. This Act helps to provide custody for the betterment of the child under section 7.

Under Muslim Law

Under the Muslim law, the mother is not the natural guardian; she is only having custody rights for the child till the specific Age. The father has a natural guardian for the child.

What Is The Procedure To File A Child Custody?

Firstly, consult an expert lawyer for the filling of the case of child custody.

Secondly, prepare all the documents related to the case and consult the lawyer for a list of documents required.

Thirdly, Petition filed for the custody of the child to the family court.

Fourthly, the court gives an option for the mediation.

Fifth, court proceedings are conducted under which both parties come with their evidence for taking custody.

Sixth, Judgment and order will be delivered on the basis of evidence and welfare of the child.

Seventh, Contact a lawyer for the enforcement of the order and judgement.

On Which Grounds Court Decide The Custody Of Child?

• The court knew the preference of the child first.
• The capability of the parent who can care for the best of the child.
• Previous behaviour by the parent with the child.
• Safety of the child
• Mental stability of the parents

What The Jurisdiction Is For Filled The Petition For Child Custody?

• Residence of the parents.
• The jurisdiction can be choosing which is convenient for the child.
• Jurisdiction can be mutually decided.

Is Court Allowed To Meet With The Child By Non-Custodial Parents?

Yes, the non- custodial parent has a right to meet with the child, because they don’t separate the child from his parents. It can be excluded only when the court feels that it is not safe for children.

Is There A Chance Of Joint Or Shared Custody?

Joint custody is a parenting plan in which both the parents share their duties after divorce or separation. It is a legal custody of a child in which both parents have authority in decision making for the child.

Is There Any Provision For Child Maintenance?

Yes, a child gets maintenance by the parents. If both parents are capable then, both have a liability but if only one parent earns and has a capacity then the liability on that parent. Child gets maintenance under the Hindu Adoption And Maintenance Act, 1956.

Cases Related To Child Custody

Gita Hariharan Vs. Reserve Bank Of India (Air 1999)

The Supreme Court held that always the mother gets first priority on the custody of the child afterward the father gets the right.

Sheoli Hati Vs. Somnath Das (Air 2019)

In this case the court held that the welfare of the child is top most priority in deciding the custody of the child.

Conclusion

When we talk about child custody, there is a need for special attention because the welfare of the child is the top most priority. The courts make decisions solely for the betterment of the child’s development, education, and best environment for the child. In India there are many laws which help in providing the custody of the child. Even the court first takes the preference of the child, afterward the other factors.

One can talk to a lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.