If a marriage breaks down and ends up in parting of a couple, the person(s) who hurts the most is the child or children born out of the marriage. While keeping in mind the parents’ right to the custody of a child, holds the well-being of the child as the most important factor of thought when determining upon who gets the custody of a minor child. The mother and father both have an equal right to the care of a child. Though is a question which the court decides upon who gets the care of the child. While the decrees are opposing when it comes to private laws as opposed to worldly enactment in the form of The Guardian and Wards Act, 1890, the court of talented jurisdiction struggles to strike a balance flanked by the two, all the while holding the comfort of the kid as the supreme importance.

Types of Child Custody Arrangements in India

  • Physical Custody- Physical custody when gave to a parent suggests that the minor will be under the protection of that parent with visit and journal communication with the other parent. The goal behind such a custody award is that the child lives in a safe and satisfying environment but is also not disadvantaged of the love of the other parent during his determinative years.
  • Joint Custody – Joint custody of a child fixes 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 if a minor. It just means that both the parents will take turns keeping the child in their custody. The revolution of a child between the parents’ custody may differ from sure days or a week or even to a month.
  • Legal Custody – Legal custody of a child varies from physical custody in more ways than one but the important difference between the two is that legal custody does not unavoidably entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent decided the legal custody takes every decision for the child. From where the child will 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 never going to decide with each other, the court scholarships the legal custody of the child to one parent.

If the order of the court exactly mentions conditions similar to the ones debated above, the parent who is gave the custody of a child is not just awarded the physical custody but also the legal custody. Any other type of custody will be exactly mentioned in the order of a court and made clear to both the parents. The custody of a child can be chiefly demanded by either the mother or the father. In case either of the two are dead or not in the picture because of process of any other law, the motherly and fatherly grandparents, any other relative(s) of either of the parents severely out of sympathy towards the child can pursue custody of the child. The Court can also employ a third person to be the carer of the child. The Hon’ble Supreme Court and other courts in India have repeated time and again that in the proceedings for custody of a minor, the well-being of the minor is the lone consideration, irrespective of the rights of the parties to the custody.

Who Will Get The Custody Of A Minor If The Mother Is In A Weaker Monetary Condition As Likened To The Father But The Father Has Remarried And Has Kids?

The Mother of a minor cannot be cast-off as the guardian just because she earns less than the father. The father has to provide for the child’s maintenance in such a case as it is a firm standard of law that a step-mother has primary duty of affection towards her own children and the father would be at work all day and the mother would be the better guardian for the well-being of the minor child.

What If the Child is not A Resident of India, but Has Been Brought to India by Either Parent Who Is a Resident of India?

While dealing with a circumstance of custody of a child removed by a parent from another country to India in breaking of the orders of the court where the parties had set up their marital home, the Hon’ble Supreme Court has held that a child can seek shelter under the parent’s patriate authority of the Courts in India. The thought of supreme importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, special right or any other right holds more importance than the well-being of the child. Any court of law allowances care to that party who can assure the court that the welfare of the child best lies with them.