Introduction

The custody of a child after the separation of the parents is a burning issue. Often movies and books have quoted the amount of trauma that a child has to go through to see the bitter process of their parents separating. The issue of the custody of a child arises after the completion of the divorce or the judicial separation and is one of the most important issues on which the court must decide.

Custody of a child refers to the right given to a parent by the court to look after the child (if the child is less than 18 years of age). The parent in whom the custodial right is vested is supposed to look after the financial security, maintenance of the child with regard to proper lifestyle, healthcare, emotional, physical and medical development. The other parent is provided with the only right to access and meet the child. The family courts while debating on the issue of custody, base their decision on the best interests of the child in question.  

Factors which contribute to the welfare of a child

The family courts when handing over the custodial rights to one of the parents, the decision is based on the attempt to assure the best possible future of the child in question. The question of welfare is decided on four distinct parameters; they are:

• Proper ethical upbringing of the child in question.
• Assurance of safety of the child.
• Imparting quality education.
• The guardian in whom the custodian rights is vested must be financially well to do. 

Forms of child custody available in India

The family court in India, when vesting custody right, resorts to any of the four forms listed below:

• Physical custody of the child 

When a parent is awarded a decree of physical custody, it means that the child will be under the guardianship of the parent and the other parent shall be given due permission so that they can meet with the child from time to time. This form of custody is the most prevalent method to ensure that the child gets all the benefits of family and has the best upbringing possible. The environment around the child is made fulfilling and enriching while trying to not deprive the child of affection of his parents during his formative years.

• Awarding of joint custody 

In cases of joint custody, the custody rights are vested in both the parents allowing them to keep the child in turns. Joint custody, contrary to the common belief, does not mean that the separated couple still have to share the same roof even after the courts have ratified their divorce.

• Third party custody

As the name suggests, the custodial right lies with neither of the biological parents. This is because the court deems that both the parents are incapable of raising a child and to let anyone of them have the rights of the child would not be beneficial for the child. A third party who is in some way related to the parents is given the right to be the guardian of the child.

• Sole custody

In case of sole custody, the entire right regarding the custody of the child relies on one biological parent. The other parent is completely kept away and is not given any right over the child due to previous history of abusive behavior, or are incapable of being beneficial to the child in some fashion.

Step-mother vs custody of a child

Often it is argued that the mother cannot be considered able on grounds that she does not earn sufficiently and thus, the awarding of custody rights of the child to the mother would not be in the best interests of the child. On the other hand, it could be observed that the father contesting the claims already had issues from his second marriage. In this case, the mother shall be awarded the custody rights because being economically weak is not a reason to not be awarded custodial rights. On top of that, the step-mother’s affection will naturally be directed towards her own children. Hence the courts often agree that not only will the custody of the children in question be given to the mother but the father also has to pay for the upbringing of the children. 

Custody laws in India: a brief overview

India being the residence of people from various communities, have different personal laws to deal with the issues arising out of society. The different personal laws dealing with custody of the child after separation of the parents are:

• Custodial rights under Hindu law

The marriage and the subsequent separation laws are dealt with by the personal Hindu Laws. The Hindu Minority and Guardianship Act, 1956, the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 stipulates the rules and regulations for the transfer of custodial rights of a minor after separation:

1. Section 26 of the Hindu Marriage Act, 1955

The provisions stipulated under Section 26 of the Hindu Marriage Act addresses the education and the maintenance of the child only when both the parents are followers of the Hindu religion. 

2. Section 38 of the Special Marriage Act, 1954

The provision deals with the custodial rights in case of the parents belonging to different religions

3. Hindu minority and Guardianship Act, 1956

The provisions do not take into consideration the third party custodial rights.

• Custody of child under Muslim law

Under the provisions of Muslim Law, the natural custody of the child rests with the mother until the child reaches the age of seven after which the father is considered the natural guardian. The age limit is set to seven since the age of being considered a major is directly synonymous to the age of puberty. 

• Custody of child under Christian law

The custodial rights of a child after the separation of a Christian parent is dealt under the regulations set in the provisions under Section 41 of the Divorce Act, 1869. The child’s welfare plays a vital role as the parents have to prove themselves capable of the responsibility of rearing the child. The court may deny custody in case it is not satisfied with the abilities of the parents. 

• Custody under Parsi law

The custody rights are managed by the Guardians and Wards Act, 1890. The Act primarily aims at the betterment of the child and has multiple legal provisions to ensure the same. 

Factors That Judges Consider in Child Custody Cases

In general, judges favor shared custody arrangements and do not seek to unnecessarily deprive any parent or guardian of contact with their child. Judges are guided by the best interests of the child when making decisions on child custody.

Sometimes that decision is more straightforward than others. To illustrate the complex issues judges confront when adjudicating child custody cases, consider some of the factors they must consider.

Age of Child

Family law judges in the U.S. do not follow any across-the-board rules when it comes to age-appropriate custody planning. Most states are moving toward an approach centered on the best interests of the child at each developmental stage. However, some states have laws that designate a certain age at which children receive increased decision-making power in custody cases.

It is important to note that age is not necessarily correlated with development. However, some general guidelines exist.

• For children ages 0 to 2, who are in the sensorimotor stage, according to Jean Piaget’s theory of cognitive development, maintaining the bond between the child and each parent is prioritized. Visitations should be frequent and time away from either parent should be minimized.
• Children ages 3 to 7, in the preoperational stage, are better able to tolerate separation, but they continue to need consistency, structure, and frequent contact with both parents.
• Preteens ages 8 to 11, in the concrete operational stage of development, will typically respond well both to spending some time away from either parent and frequent visitation. Depending on school and extracurricular activities and the child’s preference, spending more time with one parent than the other may be a better fit.
• Children age 12 and into adulthood, in the , are usually independent and seeking an identity outside of their parents. Judges encourage parents to be flexible, listen to older children’s needs, and solicit their input when establishing a custody schedule.

 

Relationship Between Child and Each Parent

Here again, when it comes to assessing the relationship between the child and each parent, no strict rules exist, only guidelines. Judges are responsible for evaluating the quality of the relationships. If a child has a strong attachment to one parent to the point where separation causes distress, a judge may agree to a disproportionate physical custody arrangement favoring that parent. But, if a forensic child psychologist or other mental health professional deems that attachment detrimental to the child’s best interests, more frequent custody exchanges in conjunction with family therapy may be ordered.

Older children who are able to express a preference for one parent over the other can also influence the court. A child who is vocally opposed to living with one parent is certainly a powerful witness. Still, a parent must demonstrate that they are able to create and sustain an emotional and physical environment where their child can thrive. A child’s preference is not the only factor weighing on the court’s mind.

Location of Child’s Siblings

Courts usually try to keep siblings together. When parents wish to separate siblings in a custody agreement, they must present a strong case to the court that centers on the children’s best interests. However, in some cases the court may take it upon itself to separate siblings.

If the safety of a child is in question — for instance, if a sibling is bullying or abusing the child — a judge may order a separate custody arrangement for siblings if one parent is better equipped than the other to meet the abused child’s needs. A psychologist or other mental health professional will likely be consulted in such cases.

The preference of the child may also compel a judge to separate the child from their siblings, particularly in the case of older children who have more difficulty getting along with one parent than the other. Judges will not assign custody solely due to preference, but if it can be established that one home is better for the child’s well-being than the other, the court will allow it.

Mental and Physical Well-Being of Parents

Parents’ mental well-being is of great concern to a judge in a child custody case. Psychological disorders, overwhelming stress, drug or alcohol abuse, and mental health crises can prevent a parent from acting in their child’s best interests. Judges may order parents to seek therapy or attend counseling as part of a parenting plan. More punitive measures, such as mandatory drug testing and monitored visitation, may be ordered in cases where a parent’s capacity to safely care for their child is in question.

Judges also look at a parent’s relationships with other adults, including their nonmarital sexual relationships. Having sexual partners present while their child is in the home or keeping company with criminals can land a parent under court scrutiny. A judge may order a parenting plan that restricts contact with certain adults when the child is in the parent’s custody.

A parent’s physical well-being is important to the court as well. Untreated health problems can impact a parent’s ability to care for a child on their own. Disabilities can also affect whether or not sole physical custody is appropriate. Here, family support can provide a mitigating factor.

Parents’ Caretaking Capacity

Judges consider whether each parent has the capacity to abide by a parenting plan when making child custody decisions. Income is considered, as well as availability and family support. Grandparents or other relatives who can help financially or share child care responsibilities bolster a parent’s case for sole or primary custody, especially if the other parent does not have that support.

Except when it is proven not to be in the child’s best interests, the court works with parents to maximize their time with their children. For example, if a parent has a job that makes them unable to pick a child up from school and family support is unavailable, partial physical custody can be awarded during the summer months. The child would reside primarily with the parent best able to meet their needs during the majority of the year.

 

What Makes a Child Not Want to Visit A Parent? 

The reasons as to why your child is refusing visitation with co-parent are unique to situation, but some causes might include:

• child is unhappy with the rules they must follow at co-parent’s house
• co-parent lives far away from their friends, school, activities, and other things they enjoy
• child and co-parent disagree on a range of matters and frequently argue, straining their relationship
• child does not get along with co-parent’s new partner or other people living in their home

If child is refusing visitation with co-parent due to a reason that directly concerns their safety, bring this to the attention of attorney or other legal professionals immediately.

If the reason does not directly impact their safety or well-being, your child should attend visitations. In fact, missing out on them could put your family in a tough legal position.

Conclusion 

The custody of a child remains one of the most sensitive and convoluted issues caused due to the separation proceedings of the parents. The custody, as seen, is guided mainly by the middle ground established by the judges on this regard. There has been a marked controversy between the various religious laws and the uniform legislation enacted by the State. However, the controversy regarding the various viewpoints of law should not compromise the future of the child. While resolving various pieces of legislation, it should be remembered that the welfare of the child along with assured social security is the prime motive behind the custody of a child. Hence, any hindrance caused by law in this front should be addressed to and then rectified.