Child custody after ex-parte divorce


My Sister's husband has filed for divorce and since my sister did not appear in court, ex-parte divorce decree order has been given. There is no mention of the child custody in the order. (Their child has not seen the father for 5 years now, he left the family when the child was 6 months old, he did not contribute anything basically towards the child at all). My sister has plans to settle abroad after all these waste of time and mental torture.

The question is If the father files for the child custody after 2 years and the child is with the mother abroad and doing well, will it still be considered ? If he asks for visitation rights and the child is abroad, will it still be considered ? How are such cases handled ?

 
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FIN

Welfare of the child is of parmount consideration fo courts.

Read the publication and decisions on IT.

 
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FIN

Cross the Bridge when IT comes...

So far there is NO call to the mother and child.

They may not wait till eternity and focuson their future and career.

 
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Advocate

Firstly the Child Custody or getting order for exclusive guardianship of the minor child the civil petition has to be filled under the Guardians & Wards Act, 1890. The very first condition about the jurisdiction of the court where the petition can be filled is the District Court where the minor ordinary resides and as you mentioned the minor child is in foreign country with his mother who is the natural guardian and sole custodian of the minor child has taken child with her and there was no order preventing her to do so nor father of the minor child sought the custody or the sole guardianship in the past 5 years.

On the basis of above legal issue the petition of the father will get dismissed by the Family Court wherever he files it now in India. 

It was experienced in few cases I dealt where the minor children were residing outside India and the custody and guardianship petitions were filled in India.

 
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Thank you for the detailed response sir. In that case, my question is if there should be some explicit order from the court to say that the Mother is the sole guardian of the child. The current ex-parte order does not mention anything about the child at all. Should we leave it as it is and let my sister proceed with her plans or should we go to the court to declare anything about the custodianship ? please let me know.

 
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What is suspicious ? The father leaves the family and will not conttibute towards the child for 7 years and then suddenly one day he will come and claim the child ? what sort of justice is that ? How is my sister and her child supposed to live their life peacefully if such things happen ?

 
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Advocate

She holds sole or complete custody of minor and no order passed by any court contrary to it. So she may proceed without any order of court.
 
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N.A

Originally posted by : Raj Kumar
My Sister's husband has filed for divorce and since my sister did not appear in court, ex-parte divorce decree order has been given. There is no mention of the child custody in the order. (Their child has not seen the father for 5 years now, he left the family when the child was 6 months old, he did not contribute anything basically towards the child at all). My sister has plans to settle abroad after all these waste of time and mental torture.

The question is If the father files for the child custody after 2 years and the child is with the mother abroad and doing well, will it still be considered ? If he asks for visitation rights and the child is abroad, will it still be considered ? How are such cases handled ?

 

Your sister cannot take the child with her without the consent of father or court permission. It is against the law of india and no country grant visa to the child.

Father can apply for visitation rights, whether he financially contributed or not . Both are seprate matters.

He can apply for custody but ofcourse for that he has to financially contribute.

Father is the natural guardian of the child and not the mother.

 
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Advocate

Both father and mother are natural guardian of minor very clearly held by the Supreme Court. No permission required for taking child out of country from father who's not bothered for the child for last 5 years. Nothing illegal if mother takes the minor with her not country will refuse visa or entry of both.
 
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