Understanding Child Custody – Types, Rights, and Responsibilities

The wardship of a child after the breakdown of parental figures is a significant problem. As is often the case, movies and books tend to stress how children experience emotional pain when their parents split. Assigning guardianship to a minor comes in after the conclusion of a divorce or a legal separation of spouses, and this is by far one of the most critical issues that a judge has to resolve.

Guardianship of a minor principle is a case when the court allows one of the parents to take care of his child (if the child is younger than 18 years old). The designated parent has the mandate of guaranteeing the financial stability of the child among others, providing the necessities that ought to be in a good standard of living such as shelter, healthcare and providing a conducive environment for the child’s development; emotional, physical and educational. On the contrary, another parent is granted visitation rights whose purpose is just to interact with the child. The family courts arrive at their decisions based on the welfare and the best care of the child, in case of child custody deliberations. Keeping the basis of it, this article will delve into the basic understanding and statutory importance of child custody with reference to the Indian laws. In Sureshta Devi vs. Om Prakash (1991), the Supreme Court opined that the phrase ‘had not been able to live together’ in divorce proceedings implies that the marriage has irretrievably broken down. The court emphasized that the child’s welfare must be the primary consideration in custody disputes, ensuring that the child is not exposed to a hostile or unhealthy environment.

Types of Child Custody 

In Sunita Kachwaha v. Anil Kachwaha (2000),  the Delhi High Court emphasized the importance of  the financial capacity of the parties and the needs of the child, in determining custody arrangements. The court highlighted that custody decisions should prioritize the child’s welfare and ensure that they receive adequate care and support.

Keeping the same in mind let’s discuss, several types of child custody arrangements commonly recognized

1. Sole Custody: This is the custody where one parent has the legal physical custody of the child, while the other parent has the visitation rights. The custodial parent makes the major life decisions till the child turns 18. 

2. Joint Custody: In this custody both the parents share the physical and the legal custody of the child where both parents have the power to make the major life decisions. The child gets to spend the equal amount of time with both parents. 

3. Split Custody: This arrangement involves each parent having custody of different children. For example, one parent may have custody of one child while the other parent has custody of another child.

4. Third-Party Custody: In some cases, custody may be awarded to a third party, such as a grandparent, relative, or family friend, if neither parent is deemed suitable or able to care for the child.

6. Temporary Custody: This may be granted during divorce or separation proceedings, or in cases where the child’s safety is at risk. It is usually a temporary arrangement until a permanent custody agreement is reached.

These are some of the common types of child custody arrangements, each with its own implications and considerations depending on the specific circumstances of the parents and the child involved.

Rights of Parents for Custody of a Minor Child 

In the case of divorce, when the rights of parents are in question, it is rather the responsibilities of each parent that matters the most. A minor child is considered to be an individual with all the rights. Even though the rights of both parents to the child are coeval and are at the same level, the welfare of the child is paramount. Equal empowerment is given to both parents in concern about custody over the child. However, the responsibility of assessing this issue ultimately lies in the family court. The Guardian and Ward Act of 1890 which serves as a cornerstone of secular legislation can be identified as that legislation that deals with such matters, which are primarily characterized by its secular nature. However, the Act’s provisions sometimes take different routes that are very opposite from the provisions seen in the personal law statutes. The oversight exercised by the family court is a vital role that it does in adjusting by balancing the interests of the parents. In Tejaswini Gaud v. Shekhar Jagdish Prasad Tiwari (2019), the Supreme Court reiterated the principle putting the focus on the child’s welfare as of paramount importance during the custody disputes. The court further iterated that the custody decisions should be focused on having the child’s best interest, while taking various factors such as upbringing, health, education and overall well being as major factors. 

Here the court provides custody for one parent or another based on these mentioned parameters. The noncustodial parent is allowed to visit the child to keep the relationship alive. Parent’s right to access thus could not be underestimated as it makes custodial parents to be accountable towards the child. Nevertheless, in this case, the visitation schedule will be determined by the courts. The granting of access rights to both parents makes it possible for the child to receive a loving and caring feeling from both of them.

Overview of Child Custody Laws in India

India, being home to diverse communities, navigates various personal laws to address societal issues, often resulting in contrasts with central legislation. Different personal laws pertaining to child custody post-parental separation include:

Custodial Provisions under Secular law:

Section 38 of the Special Marriage Act, 1954:

   – Addresses custodial rights in cases where parents belong to different religions.

   – Deals with custody, education and maintenance of the child. 

Custodial Provisions under Hindu Law

1. Section 26 of the Hindu Marriage Act, 1955:

   – Governs custody, education and maintenance of the child when both parents are Hindus.

2. Hindu Minority and Guardianship Act, 1956:

   – Focuses on custodial rights solely between biological parents who are Hindu, excluding third-party rights.

Custody of Child under Muslim Law:

– The mother holds natural custody until the child turns seven, after which the father becomes the natural guardian, aligning with the age of puberty.

Custody of Child under Christian Law:

– Custody of the Child under Christian Law is governed by Section 41 of Divorce Act, 1869 which puts an emphasis on child’s welfare. Additionally, the parents must demonstrate the capability of child bearing. 

Custody under Parsi Law:

– Custody under the Parsi Law is managed by the Guardians and Wards Act, 1890, which prioritizes the Child’s well being with multiple legal provisions. 

General Rules Regarding Child Custody in Indian Law 

Hindu Law 

• The custody of a child below the age of 5 is conventionally granted to the mother due to the belief that children of such tender age require affection and care, attributes typically associated with maternal care.
• Under Hindu law, the father traditionally holds the position of natural guardian with the primary right of custody, as codified in Section 6 of the Hindu Minority and Guardianship Act, 1956. Children in India aged between 5 and 18 have historically been under the custody of the father. However, in the case of Geeta Hariharan v Reserve Bank of India, the Supreme Court ruled that the mother’s claim to custody is viable only in the event of the father’s death or absence. 
• If the court finds that neither parent is capable or willing to adequately care for the child in their best interest, custody may be awarded to close relatives. In the absence of suitable relatives, custody may be granted to a capable third party at the court’s discretion.

Muslim Law 

• In Shia law, the mother retains the minor child custody till the time son reaches the age of two and daughter reaches the age of 7. 
• Hanafi Law, another Muslim Law allows the mother to have the custody of her son till the age of seven and the custody of the girl, until she reaches her puberty. 
• Even after divorce, a mother maintains custody rights, but if she remarries after divorce proceedings in India, custody typically transfers to the father.
• The child’s consent is considered if they are deemed capable of understanding their best interests. However, this consent must be verified to ensure it is genuine and not influenced by external factors. If there is evidence of coaching, the child’s consent is disregarded.
• Custody of a boy over the age of seven and a girl who has reached puberty typically shifts to the father who, in Hinduism, is often recognized as the natural guardian.

Conclusion

Child custody remains a sensitive and complex issue arising from parental separation. Judicial decisions typically seek a middle ground, balancing various legal perspectives. Despite controversies between religious laws and state-enacted uniform legislation, safeguarding the child’s future remains paramount. Any legal impediments hindering the child’s welfare require prompt acknowledgment and rectification, ensuring the child’s well-being and social security remain at the forefront of custody proceedings.