Custody to Father and Welfare of Child
I see father’s fighting losing battles to seek custody in courtrooms and mediation centres across India. Many approach me through word-of-mouth and with a hope in their hearts. The reason probably would be that I got the custody of my child when he was 5 years old after a fierce battle. Another reason probably would be that I have more exposure and have seen many cases from close and have hand-held many fathers in their child custody battles. The Supreme Court has said that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its widest sense that the tie of affection cannot be disregarded.
Before I go deeper into how to approach custody matters in India, a little history lesson would help us get the context.
Traditionally at Common law, the father was considered the sole guardian of the person and property of the child. However, Custody of Infants Act, 1839, in the UK – enabled the mother to claim custody over minor children, the rights of the father continued to remain supreme. In India, the Guardians and Wards Act was enacted in 1890 by the colonial state, which continued the legacy of Common law, of the supremacy of the paternal right in guardianship and custody of children. Through series of judicial decisions and amendments, the rights of father in India have been diluted. While the older cases under the GWA unequivocally hold that the father can be deprived of his position as the natural guardian only if he is found to be unfit for guardianship, there are many cases where the courts have been making exceptions to this principle. The widespread favoring of mother has been so relentless that in 2004, the Supreme Court noted “We make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always a preferable to the father to retain custody of the child. In our considered opinion, such generalisation in favour of the mother should not have been made.”
But before proceeding for what may get father custody of the minors, let’s first get to the reasons why most fathers don’t get custody of the children:
1. Child Custody is filed by many fathers to settle their other disputes. And I state it even on the cost of being trounced in all groups, a lot of people use child custody battle to put pressure on wife to settle the marital discord. I find it fit that such people who don’t have custody battle as their priority don’t get the custody of the child/ ren. Even if some fathers want the custody of child, the other family members are not that supportive.
2. Child Custody is filed very late: Many fathers have lost the battle even before the same has begun and the reason is delay. There are fathers who have filed child custody after 3 or even more years after separation. By that time the bond of the child is cemented with the mother and courts are reluctant to unsettle the status quo.
3. The Child Custody is focused on things other than ‘Welfare of the Child’. One can see petitions in which not even a word is spoken about the welfare of child. The petition is filled with what atrocities wife has committed on him and his family. Whereas the cardinal principle in child custody battle is “welfare of the child”. These petitions look like reply to their 498A/ Domestic Violence cases or at best Divorce Petitions. So when one has in effect not filed the child custody petition, the chances of getting the child custody is slim.
4. Some fathers do make themselves unfit to be the guardian. Many fathers I have met have actually gone down under. Alcoholism and Depression are two major killers of their fitness. Beyond that most have lost their livelihood, quit their jobs to save themselves from Maintenance. One should strive to keep themselves fit to be the guardian before embarking upon the Child Custody battle.
So now, how to go about getting the child custody:
A. One basic point we all have to remember in all custody battles, forewarned is forearmed. If one thinks that his kids can be taken away forcibly. He should move fast. Courts at the interim stage very rarely change the status quo and one should take all steps to ensure that the kids are not taken away. Thus the paramount goal should be not to let the child go away with woman, one should use everything in his power to ensure that. Sometimes, children are kidnapped by wives on way to school or back, in initial stages, don’t depend upon schools to prevent that. If needed get an injunction against forcible/ illegal removal of the children. Do remember, if someone has to fight the child custody battle uphill, let it be the other party. True, in Domestic Violence Act the woman can claim the custody of minor children, but even that is an effort for her, if you fight spiritedly. And even when the wife has taken away children and their are chances of her fleeing away with children to some other country, get an injunction against removal of children from the country.
B. If the children are taken away and all mediums have failed to get the custody back, be pro-active and file for the custody of children. It does not matter whether you have been admitted on Anticipatory Bail or not. Does not matter whether the case has moved from CAW Cell to Court. You are just making your intentions clear from the very beginning. The sooner you would file the custody of child, better the chances that you would get extended visitations including overnight visitations. It would also help you keep the bond with the child alive.
C. Keep yourself fit as a guardian. No drugs, no binge drinking, no leaving jobs. Also, no matter how the money is used in the hands of your wife. Always be willing to provide for the children. Better still, keep sending some money for the maintenance of child.
I also provide customized drafting solutions, including drafting of Child Custody Case on merits of the case.
For judgments where fathers have got custody you can look into the judgment section of child custody
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