If a marriage breaks down and ends up in separation of a couple, the person who suffers the most is the child or children born out of the marriage. The Indian Law, while keeping in mind the parents’ right to the custody of a child, holds the welfare of the child as the most important factor of consideration when deciding upon who gets the custody of a minor child.
What Are The Factors That Constitute “Welfare” Of A Child ?
Welfare of the child, broadly, includes the following factors:
1) Safe-keeping of the child
2) Ethical upbringing of the child
3) Good education to be imparted
4) Economic well-being of the guardian
Where Does A Minor Child Go After A Divorce?
The mother and father both have an equal right to the custody of a child. Who gets the custody of the child, however is a question which the court decides upon. While the statutes are conflicting when it comes to personal laws as opposed to secular enactment in the form of The Guardian and Wards Act, 1890, the court of competent jurisdiction strives to strike a balance between the two, all the while holding the welfare of the child as the paramount importance. However, just because the custody of a minor has been awarded to one parent, it does not mean that the other parent cannot see or be in contact with the child. The courts in India are very strict to ensure that a child gets the affection of both the parents. The other parent gets visitation rights, the conditions of which are determined by the court.
Types Of Child Custody arrangements In India:-
Primarily, a court of competent jurisdiction in India orders the custody of a child 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 visitation and periodical interaction with the other parent. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during his formative years.
2) Joint Custody:-
Joint custody of a child does not mean that the parents will both live together because of the child even though that what Indian courts believe is best for the welfare of a minor. It simply means that both the parents will take turns keeping the child in their custody. The rotation of a child between the parents’ custody may vary from certain days or a week or even to a month. This not only benefits the child as the affection of both the parents is not lost and the parents also get to be a part of their child’s life in those young years.
Legal custody of a child differs from physical custody in more ways than one but the fundamental difference between the two is that legal custody does not necessarily entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent granted the legal custody takes every decision for the child. From where will the child study and what doctor will the child be treated by is part of legal custody. In most instances, courts grant legal custody to both the parents together but if the divorce is messy and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the child to one parent.
Who Can Claim Custody Of A Child?
The custody of a child can be primarily claimed by either the mother or the father. In case either of the two are deceased or not in the picture because of operation of any other law, the maternal and paternal grandparents, any other relative of either of the parents strictly out of compassion towards the child can seek custody of the child. The Court can also appoint a third person to be the guardian of the child.
The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.