The concept of Custody is covered under the concept of Guardianship and it occurs as a result of the divorce between the parents. Divorce can have adverse effects on both parents and children and the children are subjected to a great deal of mental trauma as a result of their parent’s divorce. The issue of custody arises after the completion of the divorce and it is a relevant matter which needs to be decided by the court. Custody refers to the right given by the court to either of the parents in the favour of the child who is less than eighteen years of age. The parent who is given the custodial right has to look after the financial, emotional, medical, and all other necessary needs of the child.
Types of Custody in India
Physical Custody-
In this custody, the child will be under the guardianship of one of the parents and the other parent will be given the right to visit the child from time. This is the most prevalent kind of custody which ensures that the child gets all the benefits of the family and the best upbringing. The child is made to receive love and affection from both parents.
Joint Custody-
In this custody, both the parents are given to keep their child with them but in turns. Joint custody is one of the best solutions to the custody battle after the divorce. Under this custody, no parent feels deprives as both the parents get a chance to stay with the child and play an important role in their upbringing. The main advantage of this custody is the child can get the love, affection, and attention of both the parents equally and both the parents have the right to make decisions regarding the future of the child.
Third-Party Custody-
In this custody, neither of the parents gets the custodial right. This is because the court believes that both parents are incapable of parenting a child and that granting the child’s rights to any of them would be detrimental to the child. In such cases, a third party is appointed and the custody of the child is given in his favor for the benefit of the child. This is mainly done in cases when both the parents re-marry after divorce then the custody of the child is given to grandparents.
Sole Custody-
In this case, the custody of the child is given to either mother or father and the other parent has no right over the child. This is usually done because of the abusive or immoral nature of the non-custodial parent. Under such cases, the court passes an order that non-custodian parents will not be granted the right to visit or meet the child once in a while.
Custody of Children to Grandparents
In various circumstances, the court can grant custody of the child to grandparents. The court while granting the custody of the child considers several points. The wellbeing of the minor takes precedence over the legal rights of a particular party. If the minor is intelligent enough to decide whom he wants to reside with, the court will consider it while deciding the final custody. To determine the custodial rights, the court shall take into account the following Acid test:
- Education, health, and maintenance of the child are the relevant factors while determining the custody of the child.
- The priority of the custody of the child is given to their biological parents. However, if they do not promote the welfare of the child, custody can be granted to the grandparents.
- Financial stability cannot be the sole ground for deciding the custody of the child, the welfare of the child is of paramount consideration.
- The child’s moral and ethical well-being, as well as its bodily well-being, must be considered by the Court.
- Love of the parents towards their children cannot be a ground for deciding the custody in their favor.
- The physical and mental conditions of the parents along with their professional life are taken into consideration while deciding the custody. In such cases in which both the parents are professionally working and are not able to look after the child properly, custody will be granted to the grandparents.
- The wish of the child with whom he/she wants to stay is of utmost importance while deciding the custody.
- The ‘character’ of the proposed guardian is one of the issues that must be examined by a court of law.
- When dealing with custody disputes, a court is not bound by legislation, rigorous standards of evidence or process, or precedents. When choosing a competent guardian for a minor, the most important factor should be the child’s welfare and well-being.
- Custody disputes cannot be determined only based on papers, oral evidence, or precedents; the human touch is the most important factor for the minor’s wellbeing, since the other materials may be generated by the parties themselves or on the advice of counsel to fit their needs.
In Jai Prakash Khadria v. Shyan Sunder Agarwalla and Anr, the appellant was the maternal grandfather of the child and the respondent was the paternal grandparents of the child. The court granted the custody of the child in the favour of paternal grandparents because the school of the child was near their home. The paternal grandfather was too attached to the child and bequeathed all his property in his favor. The court further contested that since the maternal grandfather was living alone and no one is there at his home to take care of the child, the custody will be granted to the paternal grandparents.
Conclusion
Custody of the child is one of the most sensitive and complicated issues that arise after the divorce of parents. Custody of the child is always given to the person whom the court considers as the best alternative for the child. The most relevant factor while determining the custody of the children is their welfare. Courts will grant the custody of the child to that party who can assure that the welfare of the child best lies with them. In various circumstances, if the court finds it suitable then the custody of the children can be allotted to grandparents.
Edited by: Joshua Joseph
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