Child custody

What is Child Custody?

Child custody refers to the legal decision made by a court regarding which parent will be responsible for the care, custody, and control of a child under 18 years of age. This responsibility can be granted to one parent or shared between both parents. The custodial parent ensures the child's well-being, including financial support, healthcare, education, and overall development. The non-custodial parent typically has visitation rights to maintain a relationship with the child.

Official Definitions

Child Custody as defined in Legislation

Section 26 of the Hindu Marriage Act, 1955- This section addresses the education and maintenance of children for parents who are both Hindus. Court orders regarding these matters can be issued anytime, overriding any pending decree within 60 days from the notice date.

Section 38 of the Special Marriage Act, 1954 deals with custodial rights when parents belong to different religions. Similar to Section 26, orders can be issued at any time, superseding pending decrees within 60 days of notice.

Under Muslim Law, the mother has natural custody of the child until the child turns seven. After this age, the father becomes the natural guardian.

Judicial decisions on custody and visitation emphasize that "the welfare of the child is of paramount consideration," as stated in Section 13 of the Hindu Minority and Guardianship Act 1956. This principle is central in appointing or declaring a guardian for a Hindu minor.

The Guardians and Wards Act 1984, particularly Section 17, provides some guidelines for determining a minor's welfare. It states that courts should consider the minor's welfare in line with their law and circumstances. Key factors include the minor's age, sex, and religion, the character and capacity of the proposed guardian, their relationship to the minor, the wishes of deceased parents, and any prior relationship between the guardian and the minor. The court may consider that if the minor can form an intelligent preference.

Under the Protection of Women from Domestic Violence Act, 2005 (DV Act), the Indian legal system prioritizes the welfare of children in matrimonial disputes. Section 21 of the DV Act empowers the Magistrate to grant temporary custody of children to an aggrieved mother during the pendency of proceedings under the Act. This provision ensures that the mother can seek immediate custody to protect the child from domestic violence, emphasizing that the welfare of the child is paramount.

The courts have consistently ruled that the child's best interests take precedence over the parents' rights. For example, in Parijat Vinod Kanetkar & Ors. v. Malika Paruat Kanetkar & Ors. (2016), the Bombay High Court highlighted that the custody order under Section 21 is temporary and aimed at protecting the child’s welfare during ongoing proceedings. Similarly, in Dhaval Rajendra Bhai Soni v. Bhavini Dhaval Bhai Soni (2011), the Gujarat High Court stressed the importance of this temporary custody to ensure the mother’s ability to resist domestic violence.

Child Custody as defined in Case laws

In Goverdhan Lal v. Gajendra Kumar, the High Court stated that although a father is the natural guardian and has a preferential right to custody, the child's welfare is the paramount consideration. Section 6 of the Hindu Minority and Guardianship Act 1956 supports the father's role but does not override the child's best interests. The court also considered the child's wishes in making its decision.

In Mausami Moitra Ganguli v. Jayanti Ganguli, the court noted that while a parent's financial resources and love for the child are relevant, they should not be the sole factors in deciding custody. The court must exercise judicial discretion carefully, considering all pertinent facts and circumstances, with the child's welfare paramount consideration.

In Romann Sharma vs. Arun Sharma, 2015 ruled on the custody of a minor child in a dispute between husband and wife. The custody of a child below 5 years was awarded to the mother, who was more qualified and had a regular income. The father was granted visitation rights.

In Gaytri Bajaj vs. Jiten Bhalla, the Supreme Court held that the custody of a minor child should be determined based on the child's welfare rather than the parents' rights, as the child's well-being is the primary concern.

Child Custody as defined in official government reports

The Law Commission of India’s Report No. 257 on "Reforms in Guardianship and Custody Laws in India" recommends prioritizing the child's welfare in custody and guardianship cases and introducing joint custody. The report addresses inconsistencies in current laws, highlighting that the Hindu Minority and Guardianship Act, 1956, emphasizes the child's welfare, while the Guardians and Wards Act, 1890, does not and fails to treat mothers equally with fathers as natural guardians. Custody battles often lack clear guidelines on the child's welfare.

Key recommendations include strengthening the welfare principle in the Guardians and Wards Act, 1890, granting both parents equal legal status, and empowering courts to award joint custody or sole custody with visitation rights. The report also encourages expert-led mediation and proposes allowing courts to set child support based on the parents' financial resources and the child's standard of living. Detailed guidelines are provided to determine the best arrangements for the child's welfare, including parenting plans, grand parenting time, visitation rights, and relocation issues. These changes aim to create a more balanced and child-centric approach to custody and guardianship in India.

Child Custody as defined in Official Reports

The "Child Access & Custody Guidelines along with Parenting Plan" focus on the child's best interests, ensuring balanced involvement from both parents. Counselors are key in cases of parental alienation, facilitating access for the non-custodial parent and providing support. In confirmed alienation cases, custody may shift to the non-custodial parent. The guidelines define roles for custodial and non-custodial parents and include a detailed parenting plan with a visitation schedule. Counselors submit progress reports to the court but do not make custody recommendations. Psychological evaluations, if requested, must be paid for by the requester. Approved by several high courts, these guidelines offer a consistent legal framework for making custody and access decisions, prioritizing the child's welfare.

Types of Child Custody

Under child custody laws, custody, guardianship, and adoption serve different functions and have varying implications for parental rights and responsibilities. Custody refers to a parent's care and responsibility for a child, allowing parents to maintain their parental rights even if custody is temporarily assigned to another party; this arrangement can be reversed if parents demonstrate their capability to care for the child. In contrast, guardianship grants a designated guardian legal authority and responsibility for the child, where the child's parents might retain some parental rights, but guardianship can be overturned if the guardian becomes unable to fulfill their role. Adoption, however, permanently terminates the biological parents' legal rights and responsibilities, transferring full parental rights and creating a new, permanent legal parent-child relationship with the adoptive parents. Visitation rights can vary, with courts often granting parents in custody and guardianship cases the ability to maintain contact with their child. In adoption scenarios, some open adoptions might allow ongoing contact between the child and their biological family, but this is determined by the adoptive parents. Thus, custody retains the biological parents' rights, guardianship grants authority to a caregiver while retaining some parental rights, and adoption fully transfers parental rights to the adoptive parents, varying the level of biological parent involvement across these arrangements.

Physical Custody of the Child

Physical custody means that the child will reside with one parent responsible for the day-to-day care and upbringing. The non-custodial parent is granted visitation rights to ensure they can maintain a relationship with the child. This arrangement aims to provide a stable and nurturing environment for the child, while ensuring they continue to receive love and attention from both parents during their formative years.

Joint Custody

Joint custody allows both parents to share the responsibilities and time with the child, although it does not require them to live together. Instead, the child alternates between the parents' homes. This arrangement is beneficial because it ensures that neither parent feels excluded from the child's life and both can contribute significantly to their upbringing. It also helps the child to receive affection and attention from both parents, which can mitigate the psychological impact of their parent's separation.

In KM Vinaya v. B Srinivas, the court granted joint custody to support the child's growth. The arrangement required the child to live with the father from January to June and with the mother from July to December. Both parents were to equally share the child's expenses and had weekend visitation rights when the child was with the other parent. The child was also permitted to communicate with each parent via phone or video conferencing.

Third-Party Custody

In some cases, the court may determine that neither biological parent is fit to take care of the child. This could be due to various reasons such as abuse, neglect, or incapability to provide a suitable environment. In such situations, custody is awarded to a third party, who is often a relative or someone closely associated with the family. This decision is made in the best interest of the child, ensuring they are raised in a safe and supportive environment.

Sole Custody

Sole custody is granted when one parent is deemed unfit due to reasons like abusive behavior or inability to provide a beneficial environment for the child. The custodial parent has exclusive rights and responsibilities regarding the child’s upbringing, while the non-custodial parent may be completely excluded from the child’s life to protect the child’s well-being.

International Perspective

Jurisdiction Over a Child Custody Order

Approaches to determining which state has proper jurisdiction over a child have evolved. In Halvey v. Halvey, a mother moved to Florida, filed for divorce, and gained custody of her child. The father took the child to New York, where a court modified the Florida custody decree to allow the father visitation rights. The mother argued that the New York court's modification violated the Full Faith and Credit Clause of the Constitution, which requires state judgments to be respected by other states. The Supreme Court upheld the modification, recognizing that family courts can amend custody orders when new facts arise.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) grants "exclusive and continuing jurisdiction" for child custody cases to the child's "home state." This is defined as the state where the child has lived with a parent for at least six consecutive months before the proceedings begin (or since birth for children under six months).

If the child hasn't lived in any state for six months, a court in a state with (1) significant connections to the child and at least one parent and (2) substantial evidence about the child's care, protection, training, and relationships can assume jurisdiction.

A court with jurisdiction under the UCCJEA retains it until either (1) the court finds that neither the child nor the parents have significant connections or substantial evidence in that state, or (2) the court or another state's court determines that the child and parents no longer live in the state that issued the original custody order.

The Hague Abduction Convention

The Hague Convention on the Civil Aspects of International Child Abduction, known as the Hague Abduction Convention, is a treaty that provides a quick method to return a child wrongfully taken or kept in another country by a parent. The Convention applies only if both involved countries are signatories. It ensures the prompt return of children to their habitual residence and respects custody and access rights across contracting states.

For a court to order a child's return under the Convention, the child must have been removed from their habitual residence and be under 16 years old. The removal must be wrongful, meaning it breaches custody rights under the law of the child's habitual residence. The Convention includes special evidence rules, requiring swift action in proceedings, often relying on written evidence and affidavits. It aims to deter international child abduction by ensuring children are returned to their habitual residence, discouraging parents from seeking favorable courts in different countries. Each contracting state has a Central Authority to facilitate the return process, with roles varying by country.

In the USA in 2018, about 21.9 million children had a parent living outside their household, representing 26.5 percent of all children under 21. Of these children, approximately 30.1 percent were living in poverty, nearly three times the rate of those in two-parent households (11.1 percent). Nearly half (48.8 percent) of Black children had a parent living outside their household. Additionally, 49.4 percent of custodial parents had child support agreements. Around 70 percent of custodial parents expecting support in 2017 received some payments, but less than half (45.9 percent) received the full amount. The total child support due in 2017 was $30.0 billion, with 62.2 percent received, averaging $3,431 per custodial parent.

Research that engages with

The "Child Access & Custody Guidelines along with Parenting Plan" by CRF emphasizes that the child's best interest is the paramount consideration in custody decisions, focusing on emotional and physical safety, stability, and well-being, and aims to maintain a healthy relationship between children and both parents' post-separation. Addressing parental alienation, the report suggests transferring custody to the non-custodial parent to protect the child's right to receive love from both parents and prevent psychological harm. Counselors play a crucial role in enforcing access rights, conducting workshops, and staying updated on best practices for handling custody issues. The parenting plan includes a dispute resolution framework encouraging mediation and, if necessary, court intervention, emphasizing the rights of both parents and children, and addressing non-compliance issues. Clear communication between parents is vital, with guidelines encouraging parents to keep each other informed about significant events in the child's life and providing mechanisms for enforcing visitation schedules. The report also acknowledges the increasing number of divorce cases and includes charts for minimum visitation schedules based on the child's age and special occasions, ensuring children's needs are met at different developmental stages.

Pew Charitable Trusts' analysis found that few nonparent caregivers seek minor guardianship, with only 4% of children in nonparental care involved in such cases. Reasons include lack of awareness, alternative legal options, and a complex legal process. Only 22 states provide clear online information about minor guardianship, and just six offer digital tools to help unrepresented litigants. Most states handle minor guardianship in courts focused on unrelated issues, complicating matters further.

The court took the following factors into consideration, including:

1. The child (if 12 years or older).

2. Each parent, or if none, the child’s closest adult relative.

3. Anyone with primary care responsibility or custody of the child for at least 60 days within the past two years or 730 days within the past five years.

4. Any person nominated as guardian by a child (12 years or older) or a parent.

5. The child’s grandparents and adult siblings, if applicable.

6. The conservator for the child’s estate, if applicable.

7. Any other person identified by the court.

Gender Bias in Child Custody Hearings

While many parents agree that mothers should receive primary custody, the actual percentage of mothers awarded custody is higher than expected. This discrepancy suggests that many fathers who want custody are not awarded it, indicating possible gender bias.

A study by the American Psychological Association found that gender stereotypes may influence child custody decisions. In the United States, Brazil, and Argentina, good mothers received greater custody allocations than good fathers. This was linked to the tendency to ascribe "warmth-related traits" like generosity, trustworthiness, and friendliness to mothers. Additionally, there is a belief that mothers have more time for their children, though this is less accurate with the rise of dual-income families.

In 1960, only one-quarter of married couples were in dual-income households, with 70% of families having only the father employed. By 2010, 60% of families were dual income, with only 31% having the father as the sole breadwinner and 6% having the mother as the sole earner.

Way Ahead

The best interest of the child doctrine has had a profound impact on family law globally, significantly influencing the way courts approach child custody disputes. At its core, custody refers to the responsibility of one parent to provide for the basic needs and requirements of the child, while the non-custodial parent typically retains visitation rights. Initially, courts presumed that both parents shared equal responsibility, unless one was deemed unfit. In determining custody arrangements, courts consider the unique facts and circumstances of each case. They may award sole custody to one parent or joint custody to both, with the child's welfare being the paramount consideration. Notably, the court's decision may not always align with the child's wishes, as the objective is to ensure their best interests are protected.

Moving forward, it is essential to prioritize the child's welfare in custody disputes. This can be achieved by:

1. Encouraging co-parenting and collaboration between parents to minimize conflict and promote a stable environment for the child.

2. Ensuring that courts consider the child's views and preferences, while also taking into account their age, maturity, and ability to make informed decisions.

3. Providing resources and support for parents, such as counseling and mediation services, to help them navigate the custody process and prioritize their child's needs.

4. Continuously reviewing and refining family laws and policies to ensure they remain aligned with the best interests of the child doctrine.