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Lopamudra Banerjee (PM)     08 March 2012

Custody of 12 year old girl child

Hi !!

I went through a mutual divorce in March 2008. I have a girl child from that marriage and she is now 11 yrs and 6 months old. At the time of divorce we agreed on joint custody of my daughter. Thereafter I re-married and had to travel to USA by end of 2008. Before the travel, I got permission from my x-husband on a stamp paper (as an affidavit) stating that he is allowing me to take my daughter to USA.

Since then I have travelled from USA to Canada and currently a resident of Canada. For the last 3 yrs and 6 months my daughter is solely with me and my present husband and we are solely responsible for her upbringing. Now, I have applied for permanent residence in Canada and for that matter I need to present proof of custody of my child. In this context my questions are below:

1. Can I apply for full custody of my child now? What will be the process and how much time is typically required for this?  Can the process happen even if I am abroad?  assume the x-husband will be consenting

2. If the x-husband is not consenting, what are my options given that my daughter is almost 12 yrs old and she is with me solely for the last 3.5 yrs

3. If the legal custody process takes time, can I get a affidavit of No Objection from the x-husband and is there a formal process for that?



Learning

 5 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     08 March 2012

Ms.Banarjee,

Since child custody orders are always interlocutory (temporary) and capable of being moulded to changed circumstances, It is advisable to move an application to the very court which granted you the decree u/s 26 Hindu Marriage Act, 1955 for variation of the order, the process should go smoothly if X consents - even if he does not - there are good chances that you would retain the child for the Supreme Court recognizes that "a woman can't be asked to choose between her child and her life for that would be unfair to her". Vikram Vohra v. Shalini Bhalla (2010) SC

1 Like

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     10 March 2012

Yes you can.

 

What was ur husband doing for all these years that he would have any objections now.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Bina (CEO)     22 March 2012

I have a very similar case like Banerjee's; the only difference is my son is living with me for the last 8 years with me without any contact or attempt to contact from his father. I want to file for sole legal custody for my son so that I can take him abroad with me for his further studies. 

I would appreciate if you could suggest a good law firm or divorce/custody lawyer in darjeeling. 

 

Thanking you,

Bina.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     23 March 2012

Ask through references Bina.

 


Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

Lopamudra Banerjee (PM)     26 April 2012

Hello All,


Thanl you so much for the prompt response on my query. This is what I have done - Since there was no time to file a case and then resolve the custody issue ... my lawyer drafted an affidavit on a non-Judicial stamp paper - stating that my Ex -husband does not have any objection to the Permanent Residency process. This affidavit was signed by a first class magistrate.  Basically a NOC signed by my ex husband.

I am not in favour of filing a case and dragging my daughter into the mess - in any case she will be an Adult citizen in 6 yrs .... and then its her choice.

Thanks once again for the help.


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