Rights of Men regarding Child Custody

When a married couple has decided to get divorced and is not willing to live together, the person who suffers the most is the child under 18 years, who is born out of the marriage. The child is getting parted in the form of custody. To safeguard the child rights and for the best interest of the child, the judiciary system of India has legally kept the right to the custody of child.  Indian Law in this regard has been framed to give maximum importance to the welfare of the child. The custodial parent has primary responsibility of the child that includes safe keeping of the child, ethical bringing of the child, good education, medical, emotional, as well as economic well-being of the child and non-custodial parent has merely the right to access and meet the child.  There are many types of child custody in Indian law i.e.  joint custody, physical custody, or legal custody and third party custody. 

In this topic we discuss the rights of men (father) in India regarding child custody. 

Father gets custody by the following ways:

Traditionally in India, custody is mostly given to the mother as she is the prime caretaker. Still, many mothers and society members believe this. This belief makes the child custody fights for fathers very difficult and challenging. Many times the courts have rejected their plea for the same. But father can claim custody of his child by the following ways:  

1. If the mother agrees to surrender custody of the child, the father may be granted custody.
2. The child will be given to the father, if the mother is unable to care for the kid.
3. If the mother is mentally unstable, the father is the next person to get custody of the child.
4. If the kid is 13 years old or more and shows a desire to live with his father, the court will give it to him.
5. In case if mother has a bad reputation/having immoral character, which might affect the child as well, the father is given custody.
6. If the father can prove the mother’s financial incapacity, impacting the child’s upbringing in the future, as well as his financial ability to take good care for the child.
7. If the mother is a convict herself, the custody of the child will be given to the father. 

Father can fight if his name is not present on the child birth certificate

 Presence or absence of a father’s name on a birth certificate can have significant impacts on their custody rights. In many circumstances, if the person’s name is listed as the child’s father on their birth certificate, courts will automatically conclude that they are child’s legal father and therefore be granted various custodial rights as the legal father of the child. But in many cases even if the person is not the child’s biological father and his name is listed on the birth certificate as father, then courts may still grant him custody rights. It will also impose various duties on them, such as the duty to pay child support arising in the future.

If the father’s name is not on the child’s birth certificate, he is unlikely to be granted any custodial rights (partial or full) over the child. If he wishes to get legal right as the biological father of the child, he needs to take a paternity test to show the court that he is the biological father. Since children are mostly attached to their mothers, when a father seeks custody (partial or full), he must consider his child’s wishes and most importantly, what is best for his child’s well-being. Custody battles are always a traumatic and exhausting experience for a child, so the first priority of a father should be to ensure that each and everything he is doing is in the child’s best interest.

Sometimes for a father still custody can be difficult to win, even though the courts do not discriminate against father. As father, one should be prepared for a tough battle for getting child custody especially if the child’s mother too is fighting for the same. 

Some small tips to help a father for getting custody:

• Pay child support payments within time.
• Build a strong relationship.
• Maintain accurate records.
• Attend important school and social gatherings.
• Make sure everything you are doing results in providing good life to the child.

Child custody laws:

The laws which governing the cases of child custody in India are broadly fall under the following Acts :-

Guardian and Wards Act, 1890

1. Section 26 of Hindu Marriage Act, 1955
2. Hindu Adoption & Maintenance Act, 1956
3. Section 38 of Special Marriage Act, 1958
4. Hindu Minority and Guardianship Act, 1956
5. Custody Under Muslim Law
6. Custody Under Hindu Law 

Where to file child custody case:

Child custody cases are filed in the jurisdiction of the family court/ competent court where minor child presently resides. 

What procedures need to be followed for filing child custody case:

A petition for filing child custody regarding appointment of natural or legal guardian of minor by the spouse seeking child custody is by application for Interim or Temporary custody or Visitation Rights.

After closure of evidence by both parents and their respective witnesses, if any, final arguments and consequent judgement is made.

Child custody cases are mostly sensitive, demanding as well as challenging for both parents, concerned counsels, as well as the Judge(s) and therefore Courts often take the help of experts like counsellors, psychologist and other specialist dealing with child custody issues. 

How can we help you?

Lead India offers a wide range of lawyers in Delhi who will ensure hassle-free litigation. We offer a team of accomplished lawyers dealing in different domains such as child custody, custodial rights, divorce, court marriage, filing of an appeal of divorce, etc., and guide you with their expert advice.