CHILD CUSTODY IN DIVORCE

P. ILANANGAIPATENT DEPARTMENT

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• Introduction Matrimonial discords are on the rise at an alarming

rate. Home can be a wonderful place to live. But continuous fights between the partners of a marriage disturb the atmosphere at home and create havoc on the members of a family. Ultimately, in the fight between the partners, the victims more often than not are the children. The child has practically no role in breaking of the marriage, but he or she suffers. The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children.

• Four different issues that the courts consider when the couples file for a divorce: –Division of Property–Child custody/support–Alimony–Living Arrangements

• Consequences of divorce for children: Loss of a parent, (only half receive child

support) negative psychological well-being, lower high school graduation rate, lower earning, high rate of delinquency.

Absent Fathers About 15% of fathers get custody of their

children. 31% of noncustodial fathers have no contact

with children, and only a third see their children at least once a week.

• Custody is a court mandated ruling as to which parent will have primary responsibility for the children’s welfare and upbringing.

• Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18 when the spouses are taking the divorce and fighting for the physical custody of their child.

• Many of the religions practicing in India have their own personal laws and they have their different notion of custody.

• Custody under Hindu Laws: All the personal law matrimonial statutes

make provisions for dealing with the issue of child custody.

The Hindu Minority and Guardianship Act 1956, along with the Guardians and Wards Act 1890, lay down the rules of guardianship in India. Contd..

• Definition given by the Act: (a) "minor" means a person who has not

completed the age of eighteen years; (b) "guardian" means a person having the

care of the person of a minor or of his property or of both his person and property.

The act states that while the natural guardian of a minor is the father, the custodial responsibility of infants [upon the age of five] should be awarded to the mother.

• Custody under Muslim Laws: In Muslim Laws the custody of a child is given to the

mother this right is called as right of hizanat. The custody can be given to the father if the mother is disqualified by the provisions of the law.

• Custody under Christians Laws: There is no separate Act for the custody of the child in

Christians. Therefore they follow the Indian Divorce Act, 1869, applicable to all the religions.

• Custody under Parsi Laws: The custody, maintenance, education of the children

under the age of 33 is provided to either of the parents who files suit before the court.

• Hindu Marriage Act, 1955 Custody of children [sec-26] In any proceeding under this Act, the court may, from time to

time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

• The Indian Divorce Act, 1869 Custody of Children - [sec. 41- 44 of

Chapter XI] Power to make orders as to custody of

children in suit for separation. Power to make such orders after decree. Power to make orders as to custody of

children in suits for dissolution or nullity. Power to make such orders after decree or

confirmation.

• How can a person apply for custody of their child?

- File a complaint or a motion with the court.

- Mediation to try to work out a reasonable compromise. In addition, all parents are required to take a parental education class.

- If the custody mediation is unsuccessful, then the court will then order a hearing to determine the issues of custody and mediation.

• Factors considered by the Courts when granting custody

(1) emotional and physical environment; (2) the personal safety of the child; (3) moral atmosphere of the household; (4) the mental and physical health of the parents; (5) the age of the children; (6) preference of the child; (7) the prior behavior of the parents, including any history of abuse; and (8) the ability of each parent to care for the child.

• Can custody rights change? Yes. It is recommended that periodic evaluations of

the parenting plan be made. This is important because so many factors can be modified or altered over a short period following the divorce, such as change in employment, residence, or marital status.

Law requires that at least one parent is always legally responsible for the child. Any change in the status of custody rights must also be made in concern with the judicial system.

• Rosy Jacob v. Jacob A. Chakramakkal The Court held that: All orders relating to the custody of the

minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards.

• Gaurav Nagpal Vs Sumedha Nagpal, reported in 2009 (1) SCC 42

The court held that: In determining the question as to who should be

given custody of a minor child, the paramount consideration is the welfare of the child and not the rights of the parents under the statute for the time being in force. Due regards has of course to be given to the right of the father as natural guardian, but if the custody of the father cannot promote the welfare of the child, he may be refused such guardianship.

• Vikram Vir Vohra vs Shalini Bhalla, reported in 2010 (4) SCC 409

In the mutual consent divorce decree, the custody of the child cannot be modified by the Court Order in the interests of the minor child, those orders can also be varied if the welfare of the child so permits.

  Further held that Section 26 of the Hindu Marriage Act, 1955

provides for the custody of children and declares that in any proceedings under the Act, the Court can make from time to time such interim orders as it might just and proper with respect to custody, maintenance and education of minor children consistently with their wishes wherever possible.

• Conclusion: Whatever the religion is, whatever the

personal law is, but the custody of the child is given by the court after considering the best interest of the child, as the decision is the most emotional and crucial.

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