After a marriage breaks down or ends up in separation of spouses, the person who gets affected the most is the children who is born out of the marriage. Thus, while keeping in mind the right of parentâ€™s to the custody of a child, the Indian Law, holds the childâ€™s welfare as the most crucial factor of consideration while deciding upon who gets the custody of a minor child.
Both the parents have an equal right to the custody of a child. However, who gets the custody of a child is still a question which the court has the power to decide upon. Moreover, when it comes to personal laws the statues are conflicting as compared to secular enactment in the form of The Guardian and Ward Act, 1890 which holds the welfare of the child as the paramount importance and thereby the court of competent jurisdiction endeavor to strikes a balance between the two. And as because the custody of the children is given to one parent that doesnâ€™t implies that the other parent cannot be in contact or see the child. The courts in India makes sure that the child gets attention and affection of both the parents. The court gives the other parent visitation rights of which the conditions are determined by the court.
Kinds of Child Custody Arrangement In India
A court of competent jurisdiction in India primarily orders the custody of children in the following three forms:
1. Physical Custody
Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with periodical interaction and visitation with the other parent. The target behind such a custody award is to give a better life to the child in a safe and fulfilling environment and also makes sure that the child is not deprived of the affection of the other parent during his or her formative years.
2. Joint Custody
Joint Custody of a child does not implies that both the parents have to live together because of the child despite the fact that Indian courts believe that it is the best for the welfare of a minor. Joint custody actually means that both the parents will take care of the child turn by turn keeping the child in their custody. The rotation of the child among the parents may vary from certain days or a week or even for a month. These benefits the child as on one hand the child gets the attention of both the parents and on the other hand parents get to be a part of their childâ€™s life.
3. Legal Custody
Legal custody of a child does not necessarily entails having the child with the parents or vice-versa. It basically means that the parents are granted the legal custody and they can take every decision for the child likewise education, medical treatment, etc. In most of the cases, legal custody is granted to both the parents together but in certain cases where the divorce is messy and parents do not agree with each other, then in such cases the court grants legal custody to any of the one parent.
The custody of a child can be claimed either by mother or the father. In any of the case where the two of the parents are not in the picture due to operation of some other laws or deceased then in such situation, the maternal or the paternal grandparents or any other relativescan claim custody of the child strictly out of compassion towards the child. In many cases, the court appoints the third person as the guardian of the child.