Being a grandparent is one of life’s greatest pleasures. During their golden years, grandparents can relish the thrill of spending meaningful time with their grandchildren and relive their childhood.

In India, grandparents and grandchildren form close relationships. According to the US Census, almost 7 million grandparents live with their grandkids under the age of 18, and since this concept has been prevalent since the days of joint families in India, the figure would likely be considerably higher in our country. It’s also been seen in certain households that grandchildren get along better with their grandparents than with their parents.

Furthermore, grandparents have benefitted both parents and grandchildren in the twenty-first century, when the idea of nuclear families is becoming more prevalent. While their grandparents look after their children, parents have the luxury of peacefully focusing on their hectic lives and careers. In short, living together or with grandparents giving supervision for children has proven to be beneficial for parents, kids, and grandparents.

The Custody Battles of Children

All is fine till everything goes smoothly, but often things don’t go as planned. When both parents choose to separate or divorce, custody of the children can quickly turn into an issue. The legal right to look after and raise children is termed a custody battle.

The father is a natural guardian of the child. However, in his absence, the mother becomes the natural guardian of a child. When the matter goes to the court and decision of the court is around one of the four categories of sole custody, joint custody, physical custody, or legal custody. In any case the welfare of the child is considered to be the most important factor.   

The trigger factor that Grandparents demand to take custody of their grandchildren

Grandparents do not always claim their right to legal custody of their grandchildren. However, in rare cases, grandparents do occasionally seek their legal claim to their grandchildren’s custody. So, one might wonder to know if grandparents also have this right under the law and what triggers grandparents to take this extreme step.
Here are a few instances where this circumstance occurs:

  1. Unfit parents,
  2. Both the parents have passed away,
  3. Child custody has been lost for both parents,
  4. When the grandchild is adopted by a step-parent.
  5. Parental consent is given to grandparents. This occurs when parents believe their child will be in danger if they remain with them while they are serving in the military or another type of service that does not protect the child.  

What qualifies grandparents to win the custody battle?

Ensuring safe custody of the child is an extremely challenging task. To win the case, one must make the most powerful possible case. Other than submission of a compiled set of evidence, including data and medical records and attending every hearing of the court regularly, here are a few pointers that would give grandparents an edge to win the custody battle.

  • Trust is the most important factor in custody battles. The Guardian and Wards Act, of 1890, deals with child custody. As per Section 8 the persons who can make an application for being a guardian of a minor child a) the person desirous of being, or claiming to be, the guardian of the minor, or (b) any relative or friend of the minor. Hence grandparents can file a case under the Act claiming minor grandchild’s guardianship. 
  • Given that courts favour stability during a child’s growth, a grandparent will have an especially strong case if the grandchild resides with the grandparents for a year or even more than that. If the child has been residing with grandparents before, during or after the custody battle, on the death of the parent who got the custody battle gives a better option for grandparents to claim the custody. 
  • Grandparents need to demonstrate that they can provide their grandkids with the necessary care irrespective of their age, health, and financial status.
  • The grandparent was named to be the child’s legal guardian in a valid WILL left by the deceased custodial parent.

Above all of these, the fact that the child’s interests and hobbies are taken into account while making choices about grandparent rights in India. 

Legal options for grandparents

Legal Custody

Legal custody means that the grandparents have legal physical custody of the child and are free to make all decisions regarding their child, including those on education, healthcare, and other matters. In the majority of situations, legal custody is awarded either to one of the parents or to both parents jointly but in certain circumstances as mentioned above grandparents can also claim for custody, the legal custody is given to grandparents considering the welfare of the minor child.

The Legal Custody can also be granted to grandparents when there is threat to the child’s life, health and social wellbeing. If we take an example of a minor boy from Kerala, who was attacked brutally by his mother’s partner who was a custodial parent. Minor boy’s paternal grandparents sought custody of the child.

Guardianship

Testamentary guardian

A guardian designated through a will is known as a testamentary guardian. The Hindu Father, who is the minor child’s Natural Guardian under Section 9 of the Hindu Minority and Guardianship Act, 1956, may designate a guardian by will for the minor as a person and his  property.

Temporary guardianship

If an eligible guardian is unable to execute their guardianship rights due to a significant sickness or injury, they may designate another person, such as their grandparents, to act in that regard. The nomination can include a list of the duties and rights that the nominated individual is permitted to carry out and must be submitted in writing. The grandparent must then request temporary guardianship privileges from the court when and if needed. 

Visitation rights

a)      Grandparents can seek visitation rights of their grandchildren. If one of the parents got custodial rights, the non custodial parent’s parents can seek this remedy. The court may grant this based on the best interest of the child.

b)       When grandparents believe that their child’s safety and well-being are in danger, they may apply for visiting rights under the POCSO (Protection of Children from Sexual Offences) Act, 2012.

Adoption

Paternal grandparents or maternal grandparents are eligible for the adoption of their grandchildren. The Hindu Adoptions and Maintenance Act of 1956 especially addressed the legal requirements for Hindu adults to give “maintenance” to grandparents following the legal procedure of adopting children.

As in the case of the custody of Master Rehan by maternal grandparents in 2013. After all the hearings, the family court declared that a second marriage of the father cannot disqualify him from being a natural guardian of the child. Hence, grandparents were denied to be appointed as the Guardian.

Important Points to consider:

While seeking custody, guardianship or visitation rights of their minor grandchildren, the grandparents need to bear in mind that the courts of law always look into the welfare of the child to be the paramount. The rights of the parents or grandparents do not come into the picture when there is custody battle. The child’s opinion is also considered if she/ he is of an age where she/he is capable of expressing herself/ himself. Custody of a child is not a matter of the status or ego, rather to be dealt with considering the best interest of the child. 

Conclusion

The child custody battle is determined by a complex and time-consuming legal process. It is advisable to have a knowledgeable legal law representation stand by you if you plan to approach the court for grandparents’ rights. This is because it could be tiring and stressful for grandparents to understand the rules, and laws and focus on important matters relating to the case.

Thus, by choosing the right lawyer who could handle the case wisely, guide the procedure, and advise you on the viability of your case and regulations will make the process simpler and less stressful for the grandparents to present a strong argument and get a hold on the case.

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