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Custody Of Children After Divorce

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We can see that divorce is not common in India. It is the children who are most affected. Child custody is a term used in family law to describe the court’s decision on the legal guardianship of minor children.

Types of Custody

  • Physical custody – When one parent is incapable of parenting or abusive, a single parent gets custody. The custody will be granted to the primary caretaker, who will also be responsible for the child’s emotional and educational needs. Another parent can have visitation rights, but only for the weekend. This includes alternate major holidays and summer vacations.
  • Legal custody – Legal custody allows a parent to make important decisions about the child’s welfare. These rights include the right of the parent to provide for the child’s medical, educational, and financial needs. Most cases grant legal custody to both parents. However, if the parents disagree or there are many arguments, the court may give legal custody to one parent.
  • Joint Custody is simply the act of both parents taking turns with their child’s care. There may be a variation in the rotation of custody between parents. It could vary from one day to another, or even a week to one month. This does not only benefit the child but also ensures that both parents are present for their child’s early years.

The Guardians and Wards Act 1890

The 1980 Guardians and Wards Act defines a minor child as a person under 18 years old who is intellectually and physically immature and needs someone to care for him. The court decides on the best interests of the minor, taking into account his age. A Guardian is a person who has the responsibility of taking care of a minor’s property or person. The court will make the final decision in the best interest of the child.

Who can claim custody of a child?

Either the mother or father can claim primary custody of a child. If either parent is unable to be present due to operation of another law or is deceased, the paternal and maternal grandparents, as well as any other relatives of either parent, can petition the Court for custody.

Child Custody under Hindu Law

Only Hindu parents can apply Hindu law. Below are the rules to gain custodial rights according to Hindu laws.

Section 26 – According to Section 26, the Hindu Marriage Act of 1955, the court may make such interim orders from time to time and make such provisions in the decree, as it considers just and appropriate, with respect to custody, maintenance, education, and support of minor children. The court can dismiss the pending decree 60 days after the service of the notice.

Section 38 – Section 38 is the Special Marriages Act that validates custody of the child if the parents are of different religions or have been married in court. The act allows the district court to make interim orders and include such provisions in the decree that it deems appropriate about custody, maintenance, and education of minor children. The court can dispose of the pending order within 60 days of receipt of the notice.

Hindu Minority and Guardianship Act (1956) – This law states that only Hindu biological parents can seek custody of their minor children. Stepparents cannot seek custody if the minor is Hindu.

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