Child Custody – The Courts and the Law

The topic of ‘Child Custody’ is a contentious issue between conflicting spouses in a divorce case. According to Section 13 of the Hindu Minority and Guardianship Act, 1956 the court will award custody to that spouse or parent who, in its opinion, can best protect the interests and welfare of the child as it is necessary to provide the child with a peaceful and congenial environment during its growing years. It would also facilitate the development of his physical, intellectual and emotional abilities.

Who can file a Child Custody Petition and in Which Court?
A petition for child custody can be filed by a spouse at any time before or during the divorce proceedings. It can also be filed as a completely separate petition in which a parent can allege that since the child is not being properly looked after, the custody should be awarded to the petitioner parent and taken away from the other spouse. Usually a petition for child custody is filed in the family court of the concerned city where the spouses reside. In the districts where family courts are not yet constituted, the petition for child custody should be filed in the court having jurisdiction of the concerned Civil Judge, senior division. The jurisdiction of the court depends on where the child resides.

What is an access order?
An access order is a direction by the court ordering a husband or wife to allow the other spouse to see the child on specific days. Such an order can prescribe a place where the child can meet the parent who does not have custody.

What are the consequences of violating an access order?
If a parent violates the terms and conditions of an access order passed by the court, then it amounts to committing the offence of ‘civil contempt’. As a consequence, the parent who commits such civil contempt is punishable with up to six months in jail or a fine.

Can courts take away child custody from the mother?
Ordinarily the court stands to award custody of a child to the mother. However there can be exceptional cases where on account of certain adverse situations, the court can take away custody from the mother and award it to the father. Such orders have been passed in cases where the mother was found to have completely no interest in taking care of the child or was an alcoholic or a drug addict.

Being richer does not entitle a spouse to child custody:
It is important that just because one spouse is richer than the other it does not mean that he or she has a right to claim custody of the child. It is a settled principle in law that mere question of money cannot be a factor in deciding with whom the child should stay. This is because the law prefers a holistic development environment for the child where his physical, emotional and intellectual needs and aspirations are
catered to.

Do the wishes of the child matter?
Yes. While hearing a petition for child custody the judge may call the child into his chamber and ask her whether she desires to reside with a particular parent or not. Children have had traumatic experiences during parental fights and incidents of domestic violence. From time to time the courts have ruled that it is necessary to take the child’s wishes into consideration while deciding which parent should have custody of the child.

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