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, especially in matters such as custody for grandparents.
The Custody Battles of Children
Everything is fine until 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 care for and raise children is called a custody battle.
The father is the 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, the decision centres on one of the four categories: sole custody, joint custody, physical custody, or legal custody. In any case, the child’s welfare is considered the most critical 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:
- Unfit parents,
- Both the parents have passed away,
- Child custody has been lost for both parents,
- When the grandchild is adopted by a step-parent.
- 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 a highly challenging task. To win the case, one must make the most potent possible case. Other than submitting a compiled set of evidence, including data and medical records, and attending every court hearing regularly, here are a few pointers that would give grandparents an edge in the custody battle.
- Trust is the most critical factor in custody battles. The Guardian and Wards Act of 1890 deals with child custody. As per Section 8, the persons who can apply for being a guardian of a minor child are 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 extreme case if the grandchild resides with the grandparents for a year or even more than that. Suppose the child has been living with grandparents before, during or after the custody battle; the death of the parent who got the custody battle gives a better option for grandparents to claim the custody.
- Grandparents must demonstrate that they can provide their grandkids with the necessary care irrespective of age, health, and financial status.
- The deceased custodial parent will leave a valid name for the grandparent as the child’s legal guardian.
Above all, the child’s interests and hobbies are considered when choosing grandparents’ 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 most 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 Custody; legal Custody is given to grandparents, considering the welfare of the minor child.
Legal Custody can also be granted to grandparents when there is a threat to the child’s life, health and social well-being. If we take the 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, 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 exercise 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 must be in writing and include a list of the duties and rights that the nominated individual is permitted to carry out. The grandparent must request temporary guardianship privileges from the court when and if needed.
Visitation rights
a) Grandparents can seek visitation rights for their grandchildren. If one of the parents has custodial rights, the non-custodial parent’s parents can pursue 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 mainly addressed the legal requirements for Hindu adults to give “maintenance” to grandparents following the legal procedure of adopting children.
As in the case of Master Rehan’s custody by maternal grandparents in 2013, after all the hearings, the family court declared that a father’s second marriage cannot disqualify him from being a natural guardian of the child. Hence, grandparents were denied the right to be appointed as Guardians.
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 consider the child’s welfare to be paramount. The rights of the parents or grandparents do not come into the picture when there is a custody battle. The child’s opinion is also considered if they are of an age where they can express themselves. Custody of a child is not a matter of status or ego but rather to be dealt with considering the best interest of the child.
Conclusion
A complex and time-consuming legal process determines the child custody battle. It is advisable to have a knowledgeable legal law representation stand by you if you plan to approach the court for grandparents’ rights. It could be tiring and stressful for grandparents to understand the rules and laws and focus on essential matters relating to the case.
Thus, choosing the right lawyer to 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.
Advocate Kiran S R – A highly skilled, passionate, dedicated advocate, with vast wealth of knowledge, professionalism, ethical approach and expert skills. One of the sharpest legal mindset brings the best principles of legal practice to the forefront. A qualified Engineer turned Advocate. His passion, dedication and vision to help and assist his clients achieve the best results is his driving force.
