Myths about child custody in India

Child custody laws and myths in India

In India, both the parents of the child have equal rights of custody. Child Custody involves the right of a parent to make decisions about the living conditions, education, and health of a child.

When parents decide to separate, the issue of child custody arises and the Court’s jurisdiction is invoked to decide which parent shall have the custody if there is no private agreement between the parties. The Court may also take suo motu cognizance wherein it can decide the issue of custody on its own without any application or petition. It may also grant a child’s custody to grandparents in cases the Court finds that the parents are unfit or departed or for the welfare of the child.

Many factors include the welfare of a child, such as the safe keeping of the child, ethical upbringing of the child, good education, and economic well-being of the guardian, etc. In this article, we will discuss the myths and misconceptions related to child custody in India.

There are a few myths that are prevailing regarding child custody in India, such as:

1. Only a mother is a natural guardian of a minor child,
2. A mother will always get her child’s custody,
3. A father cannot get custody of a minor child,
4. A parent earning better will always get the child’s custody,
5. Grandparents can never claim grandchildren’s custody,
6. Custody disputes always go to court;
7. If the child is old enough, they will be able to decide custody;
8. The custodial parent can move away with the children anytime;
9. A parent not able to pay child maintenance, won’t get visitation;
10. No remedy against the partner bad-mouthing my child;
11. Fathers always have to pay child maintenance;
12. One parent filing for child custody before the other parent will be given preference by the Court;
13. A custody order/agreement can never be changed once it is in place;
14. Custody is all or nothing, etc.

Custody of a minor child and surrounding myths

• Mother is only natural guardian: Mother and father both the parents are both the natural guardians of a child. U/s 19 of Guardianship and Wards Act, 1890, and u/s 6(a) of Hindu Minority and Guardianship Act 1956, the father is the natural guardian of his minor legitimate children, sons and daughters. However, a father’s right of guardianship is not above the welfare of the child. Hence, the Court can decide what is in the best interest of the welfare of the child.
• Only the mother can seek the child’s custody: Both the mother and the father have the right to apply for child custody. The Guardians and Wards Act, of 1890 gives complete power to the court to decide the most suitable guardian for the child, hence based on the factors discussed above, the Court decides what is in favor of the child.
• Mother will always get minor child’s custody: The prime parameter to deciding child custody is based on his welfare and with whom he/she would get the best upbringing. The mother is usually given preference when a child is less than five years old but there is no rule that the father cannot get the custody or he can claim it once the child turns above five. On filing of an application for visitation rights, the Court allows rights to meet with the child to the parent who has not got custody.
• Better-earning parents will get child custody: This is a myth that a parent who is earning better will get the child’s custody as apart from economic parameters, other aspects are also taken into consideration while deciding custody of the child.
• Grandparents cannot claim grandchild’s custody: The Court may also grant custody to grandparents if the child’s parents are not alive or they are an addict or for any other reason. The priority will be given to the parents if they are capable in all ways of providing the child with a good environment.
• Child custody through Court only: Not necessarily, the parents can have a private agreement and they act accordingly, may not involve the Court at all. However, in case of violation of the agreement, the aggrieved party can approach the Court.
• Child can choose his custodial parent: The child is given the privilege to choose between either of the parents when 9 years and above, however, the Court has discretion to decide and only after turning 18, a child can decide his custody.
• No visitation if maintenance for a child is not paid: Visitation rights and payment of maintenance are two different things that are governed by Court orders concerning those two issues.
• Bad-mouthing the other parent: This can lead to repercussions as the Court prioritizes the child’s emotional and mental well-being. Disrespecting the other parent can harm the child emotionally and it is not appreciated by the Courts.
• Father to always pay child maintenance: This is a misconception as both parents are liable to bear child maintenance if earning. The same shall be decided in the ratio of their earnings.
• Filing before other partners gives priority: The Supreme Court of India and the other Courts have repeatedly clarified that for child custody, the only consideration is the child welfare, irrespective of the claims of the parties to the custody.
• Once a custody order is passed it cannot be altered: Custody orders are not rigid and hence not final, they can be molded and altered considering the child’s needs and welfare. This is another myth that once child custody is given to one parent, the same is for life and it cannot be terminated by the Court.
• Child custody always with mother: The custody of a minor child would go to either parent. For a child who is below 7 years of age, his/ her custody would preferably go to the mother but if she is not psychologically fit or not able to provide the parental upbringing then custody of a minor child will be given to the father.
• All-or-nothing child custody fight: This makes the existing issues more complicated between the parents and the Courts support joint legal custody or joint parenting, which means that both parents have equal rights and access to the child. It includes the child’s education and upbringing, and both parents would share the physical custody of the child having equal contact with the child. The court promotes shared parenting or joint custody and ensures that non-custodial parents should get proper/ frequent access to the child.

Conclusion

In the custody battles between the parents, the psychological equilibrium of a child is majorly affected, and the parents forget that in their dispute the major sufferers are their children. As discussed above, the courts around the globe have given the child’s welfare the paramount while granting custody to either parent. However, now courts have been emphasizing the shared parenting and joint custody of the child.