CUSTODY OF CHILD

This term refers to guardianship and describes the legal and physical relationship of a child with parents or the guardian. It is the legal custody which grants the parents or the guardian right to take decisions about the child.

Normally, the custody of a child lies with the parents who have given birth to the child. Married parents normally have joint legal and physical custody of children.  Issue of custody apart from legal custody arises in case of divorce, annulment, separation, adoption and parental death.

Child’s custody is decided by the court keeping in mind the welfare of the child. There are various parameters:
 

1. Who is capable of ethically bringing up the child
2. Assuring safety of the child
3. Who will ensure quality education of the child
4. The guardian who is granted custodial right shall be financially well

Overall, the Court sees the best interest of the child.

1. Physical Custody

Physical custody implies that the child will be under the guardianship of the parent to whom the physical custody is granted and the other parent is given the right to visit and meet the child. In this way the child gets the benefits of both the parents.  This way the child is not deprived of the love and affection of the parents.
 

2. Joint Custody

In this case custody rights are vested in both parents allowing keeping the child in turn. It is not necessary for the separated couple to share the same roof. Custodial rights cannot be mixed with access rights. This way no parents’ feels deprived of the child and the child also gets affection from both parents. The rotation of the child among parents may vary from a certain number of days, weeks or months.

3. Legal Custody

Parents are granted legal custody of the child i.e. both parents can decide about the child’s education, medical treatment or any other requirement. On the contrary, certain parents do not agree with this custody as they cannot agree mutually to things, in that scenario the court grants the legal custody to any of the parents.

4. Third Party Custody

In this type of custody, rights lie with neither of the biological parents because the court feels that either of the parents is not capable enough to raise the child and the well- being of the child cannot be taken care of and is not beneficial for the child. Any person who is in any way related to the parents is given the guardianship of the child by the court.

5. Sole Custody

This is the scenario where only one biological parent is given the right to be the guardian of the child and the other parent is kept completely away from the child due to a history of abusive behavior or for whatever reason.

As regulated by Hindu Law and Secular Law custody of a child below 5 years of age is naturally granted to the mother irrespective of the gender.

Gender Specifications:

1. In case of older boys the custody is awarded to the father.
2. In case of older girls custody is awarded to the mother.

*In this case below scenarios are considered by the court:

a) Court considers the well-being of the child

b) In case the mother is not earning sufficiently, simply this cannot be the reason for denial of custody.

c) In case the father has remarried, the biological mother is given preference for the custodial rights.

1. Section 26 of Hindu Marriage Act

It deals with the maintenance and education of the child and only when both the parents are Hindu by religion, the custody of the child gets verified. Under this act, the court can pass orders, judgments, and amendments at any point of time in respect to the maintenance of the child.

2. Section 38 of Special Marriage Act

This is applicable when both the parents are of different religions.

3. Hindu Minority and Guardianship Act
 
Only biological parents can seek the custody of a child in case he or she is Hindu.

In India custody of a child is dealt with under various laws and scenarios keeping in mind the best interest of the child.

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