Child Custody Laws In India

Concept of Child Custody

A child is described as a person who has not attained 18 years of age, and till he or she attains adulthood is the responsibility of the parents.

The child custody matter becomes a concern when the parents decided to end their marriage through a divorce. With whom the child will stay, is subject to careful consideration.

Often the mother is given preference in getting the child custody, but the whole matter is dependent on the prevailing circumstances.

The most competent one will get the custody of the child, or both the parents can get it.

Laws related to Child Custody

Child custody matters are sensitive issues that the Court takes utmost care of while passing the decision. Even the laws regarding child custody give the welfare of the child the topmost priority.

Proof of Competency

To get the custody of a child, the parent claiming must prove himself/herself competent before the Court that he/she is the best suitable parent to take care of the child. The Court in this matter, first lets the parents decide with whom the child will stay. In case, the parents are unable to reach a solution, the Court considers financial, social and psychological factors of both the parents to decide who will get the custody.

Even after the custody order is passed, the Court keeps a watch on the custodial parent, whether he/she is taking care of the child or not.

Age of the child

The age of the child is an important factor in a child custody decision. Here are the laws relevant to the age of the child:

* Less Than five Years of Age: Usually mothers have the first preference for the custody of an infant, due to certain obvious reasons for the welfare of the child.

In this situation, both parents wishing to get the custody may get joint custody, in which the mother shall have physical custody, and the father can visit the child at any reasonable time and provide monetary maintenance.

If both the parents are financially capable to maintain the child, it shall be their joint responsibility for the financial requirements of the child.

Though the mother gets the priority here, however, the father is given priority if she is not willing to take up the custody; she is not in good mental health; or she is not of a sound character.

If neither of them is competent enough, the first preference is given to the grandparents, then comes other relatives - uncle or aunt.

* Between five to 13 Years of Age: If the child is less than 13 years old, and more than five years, the child is asked by the Court whom he or she wants to stay with, preferably at the magistrate's chamber, so that the child does not feel scared being in the courtroom.

Anyhow, the order is not passed based on the words or preference of the child, because at this stage obviously, children are easily influenced or brainwashed.

Here, along with knowing the child's mind, the parent also has to prove to be competent to take care of the child.

* More Than 13 Years of Age: At this age, the Court considers the words of the child seriously, and even the father can easily get custody of the child.

Here, the Court often insist to take joint custody, because at this stage, where the child is entering adolescence, and faces issues of teenage, undergoing the mental pressure of separating parents may impose a negative impact on the child.

* More than 18 years of Age: No matter the 18 years old son/daughter is still a kid for the parents, but in the eyes of law, they are not a child basically, no custodial affair can come into action if the concerned child has crossed 18 years of age.

Anyhow, here, daughters are more privileged than a son. The daughter till not married, or start earning enough for herself, is liable to get maintained by parents, whereas for a son, there is no such liability on the parents.

However, once passed, the child custody can be altered by the Court if the custodial parent is unable to take appropriate care of the child or is found mistreating the child.