After the divorce is granted and the partners are finally separated, it is their children, who were born out of their marriage, who are affected the most. They are the ones carrying the emotional baggage and the confused state of mind. Thus, Indian law considers the best interest of the child’s welfare and mental health when deciding upon the issue of custody in the divorce proceeding. In this article, we will discuss the impact of Child Custody on Divorce Settlement Agreements.
The Court Keeps The Following Factors In Mind:
- The upbringing of the child should be in an ethical manner;
- The safety of the child is the crucial point; and
- Whether the child is receiving a quality education or not. And last     is the economic soundness of the guardian.
Types of Child Custody
Physical Custody
When a parent is awarded custody of the child, that parent then attains his or her legal guardianship, and the other parent will be allowed periodical interaction and visitation. The ulterior motive for granting such guardianship is to ensure a stable and healthy environment and to make sure the child is not deprived of the affection of both parents.
Joint Custody
The name joint custody does not mean that the parents are obliged to live together, but joint custody actually means that both parents will get turns keeping the child in their custody. That time period could differ from case to case; it may vary from a certain number of days to a week or, in some cases, even for a month.
Legal Custody
In simple words, legal custody means that now parents are entitled to make every decision for the child, for example, related to medical treatments, education, etc. Normally, legal custody is granted to both parents. If divorce is complicated and messy and the parents are not ready to compromise, then legal custody is granted to one of the parents.
Child Custody In The Case Of Minor Child
Generally, both parents enjoy an equal right to custody of the child, but it is still in the court’s power to decide who will get custody. Although if one parent gets custody of the child, it does not imply that the other parent cannot meet the child or has to cease communication. The foremost priority of the court is to make sure that the child can get affection from both parents. Further, the courts focus on maintaining balance between personal laws that contradict the secular enactment, The Guardian and Ward Act 1890.
Claim for Custody of Child
Both Mother and Father have the right to claim custody of the child. If by any chance neither parent is claiming custody of the child or is deceased, the grandparents (maternal or paternal) could seek custody of the child.
Preferences to the Claim of Custody
Generally, in the case of a child younger than five years, the mother’s claim to child custody is given preference; mostly the father gets custody if the child is an older male, and the mother gets custody of an older female child. If the child is nine years old or older, then his or her choice will be considered by the court. However, if it is found that either parent is neglecting his or her duties and ill-treating the child, then the custody could be taken back. If the mother does not have a strong financial background as compared to the father and the father has remarried, in such a case, custody will be given to the mother. The reason being, stepmother already has kids of her own to focus on and care for. And the father, due to his work, won’t be able to spend much time with the child; hence, the mother would be the better custodian.
Custody of Child under Different Personal Laws
Hindu Law
Child custody under Hindu laws is governed by the Hindu Minority and Guardianship Act, read with the (secular) Guardians and Wards Act, 1890. The best interests of the child are prioritised, as is the fact that he has a say in granting custody, whereas the father is treated as the natural guardian.
Muslim Laws
Under Muslim law, child custody is governed by their personal laws in conjunction with the Guardians and Wards Act of 1890. Here also, the father is treated as the natural guardian of the child, and the child’s best interest is considered as his opinion matters.
Christian Laws
Child custody under Christian law is governed by the Guardians and Wards Act, 1890, read with the Indian Divorce Act, 1869. Further, there is such a distinction between the rights of father and mother. The fundamental principle for granting custody is the best interest of the child. If the child can understand the situation, then his opinion is given considerable value.
Parsi Laws
Child custody under Parsi law is governed by the Guardians and Wards Act, 1890. Further, there is such a distinction between the rights of father and mother. The fundamental principle for granting custody is the best interest of the child. If the child can understand the situation, then his opinion is given considerable value.
Conclusion
The Guardians and Wards Act, 1890[1], is the secular statute that regulates child custody. The primary aim of allocating custody of a child is to seek his safety and welfare, so if required, the other personal law rules and rituals can be set aside. Preferences are given to the parents and the childs, but it is the court that makes the final decision regarding the custody of the child.
Read Our Article: The Importance Of A Divorce Settlement Agreement In A Divorce Case
