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After Divorce, Custody of Children

We can see that divorce is not common in India. It is the children who are most affected. Child custody is a term used in family law to describe the court’s decision on the legal guardianship for minor children.

Types of Custody

Physical Custody

Legal Custody

Joint Custody

Third Party Custody

Physical custody – A single parent can be granted custody of a child if the other parent is unable to parent or abusive. A visitation right is granted to another parent, who has the exclusive right to see the child every weekend, alternate major holidays and during summer vacations.

Legal custody – A legal custody allows a parent to make important decisions about the child’s welfare. These rights include the right of the parent to provide for the child’s medical, educational, and financial needs. Most cases grant legal custody to both parents. However, if the parents disagree or there are many arguments in such cases, the court may give legal custody to one parent.

Joint Custody means that both parents will alternate taking care of the child. A child’s custody can be divided between the parents on different days, weeks or months. This is good for the child because it preserves the love between the parents and allows the parents to see their child in the early years.

The Guardians and Wards Act 1890

The 1980 Guardians and Wards Act defines a minor child as a person under 18 years old who is intellectually and physically immature and need someone to care for him. A Guardian is a person who has the responsibility of taking care of a minor’s property or person. The court makes a decision in the best interests of the minor, taking into account his age. The court will consider the following: Religion, gender, character of guardian and death of parents. It is also taken into account the preference of the minor. The child’s welfare is considered a primary consideration. The court makes the decision in the best interests of the child.

Who can claim custody of a child?

Either the father or mother can claim primary custody. If either parent is unable to be present due to operation of another law or are deceased, the paternal and maternal grandparents, as well as any other relatives of either parent, can petition the Court for custody. A third person can be appointed by the Court to guard the child.

Child Custody under Hindu Law

Only Hindu parents can apply the Hindu law. Below are the rules to gain custodial rights according to the Hindu laws.

Section 26 – According to Section 26 of the Hindu Marriage Act 1955, the court can from time to time make interim orders and include such provisions in the decree that it deems appropriate with respect to the custody, maintenance and education of minor children. The court can dispose of the pending order within 60 days of receiving the notice.

Section 38 – Section 38 is the Special Marriages Act that validates custody of the child if the parents are of different religions or have been married in court. The act allows the district court to make interim orders and include such provisions in the decree that it deems appropriate with regard to custody, maintenance, and education of minor children. The court can dispose of the pending order within 60 days of receipt of notice.

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