When a marriage falls apart and the couple separates, the children born out of the marriage are the ones who suffer the most. While the right to custody of the children is an important component of Indian law, the welfare of the child is the most essential aspect to consider when selecting who gets custody of a minor child. Child Custody is the legal right of the parents to keep and look after the child if the couple resorts to divorce. In general, it refers to the privilege provided to a child’s mother or father, but in exceptional circumstances, such as the loss of one or both parents, it may also be granted to grandparents or a third party relative to act as the child’s legal guardian until the child reaches majority.
Types of Child Custody in India
Legal custody
This term refers to the split of parental rights in making crucial life decisions for a minor child such as selecting a school, physician, medical treatments, and religion. If the custody is joint, both parents share decision-making authority over the minor; if the custody is sole, the parent with custody has the authority to make crucial choices without consulting the other parent.
Physical custody
It occurs when a child resides with one parent and that parent decides on all of the child’s normal issues during the time the youngster is with them. The child’s legal abode is usually the home of the parent who has physical custody of the child. Court-ordered custody with a parenting schedule or a parenting plan is the various times during which both parents lodge and care for the child.
Split custody
When there is more than one child, this form of custody entails an arrangement in which one parent has sole custody of one of the children while the other parent has sole custody of the other or remaining children.
Third-party custody
This custody arrangement entails the children not being with either biological parent and instead of being with a third person, such as a grandmother or a relative, under extraordinary circumstances.
Alternating/ Divided custody
This is a situation in which the child lives with one parent for an extended period and then with the other parent for the remaining time.
Bird’s nest custody
In this arrangement, the parents exchange visits to a residence where the child or children constantly dwell. As a result, it is the parents, not the minors, who are always moving. In contrast to India, where the Court often gives physical custody, this practice is more common in the West.
Unlawful Custody
During the pendency of proceedings, or even before filing a proceeding, either parent may resort to physically keeping the child away from the other parent, which is known as unlawful custody. The accurate definition involves removing the child from the setting if it interferes with the aggrieved parent’s parenting rights.
Factors determining Custody of a Child
Parents’ Consent
After the divorce, the court will question both parents who want full custody of the young children. When both parents desire custody, the court may have a tough time making a judgment, however, when one parent wants complete custody; the court will have an easier time making a decision. As a result, in this situation, the court will solely consider the interests of the parents when making a decision.
Childs’ Consent
Even while the court does not place a lot of pressure on young children, they always want to give importance to the child’s preferences and who they want to live with. However, if the court notices that the children have chosen a parent who has a high risk of spoiling them, the court will make a special arrangement for the young children.
Relationship between child and each parent
The bond between the children and each parent will be the court’s first consideration. If the court determines that the young children are more compatible with one parent and have a strong relationship with that parent, the court will award that parent full custody. The court will give the other parent visitation instead of custody, and that parent will be responsible for child maintenance as well. In this way, if the child’s relationship with both parents is important, the court will prioritize it.
The mental and physical condition of both parents and child
If one parent is physically incompetent and unable to care for the child, the court will make a different decision. The disabled parent, partial custody, visitation, and child support will all be factors in the court’s judgment. If one of the parents is mentally ill, the court will award complete custody to the other parent, with child support taken into account.
Age of the Child
The age of the child is one of the most relevant factors while determining the custody of the child. If a child is very small and the couple decides to part their ways then the custody of such child is usually given to the mother since the infant requires the support and care of the mother to a great extent.
Conduct of the parents
The conduct of the parties is taken into consideration while determining the custody. If the court observes any sort of ill behaviour by any of the parents, the child custody will be reconsidered. The court will transfer the custody of the child to another parent if one of them has bad conduct because it is not good for the welfare and upbringing of the child.
The financial condition of both parents
The financial condition of the parties is equally important while determining the custody of a child. If any of the parents are in a bad state of financial condition then it becomes almost impossible for the court to grant custody of the child to such parent as it might act as a hindrance in the growth of the child.
Conclusion
The welfare of the child is the most important criterion in a custody proceeding for a minor. There is no legal right, preferential right, or another right that is more important than the child’s well-being. Any court of law will award custody to the party who can demonstrate to the court that the child’s best interests are best served by them. Sometimes it becomes difficult to forecast how custody will be distributed and how the case will be settled. In most cases, the court prefers to make a decision that benefits both parents in a joint agreement. The court will make a decision that allows the child to grow up in a safe and healthy environment.
