“Legal Custody", in a family law context, is a type of Child Custody that grants a parent the right to make long-term, important decisions regarding their children. The issue of ‘Child Custody’ arises during judicial separation or divorce proceedings, where it becomes an important issue to be solved by the courts. It refers to the process of caring, controlling, and maintaining the child of age less than 18 years by the custodial parent to whom the Court has granted the rights under the decided parameters such as lifestyle, financial security, and understanding with a child etc. The major rights of nurturing the child with respect to medical, education, development physically and emotionally etc., lies with the parent having custodial rights while the non-custodial parent holds only the right to access and meet the child. Generally, both the parents are provided with the right of access to the child, but usually, the physical custody of the child is granted to one parent only. While deciding this, the Family Courts need to keep the best interests of the child paramount importance.
Types of Child Custody in India
In India, in several innumerable cases, it has been held that the child's best interest in a case of Child Custody needs utmost importance, surpassing every legal provision laid down. The Court grants this right to child custody either to both or one of the parents under certain rules and regulations. The Law in India allows parents to seek child custody according to the below-mentioned forms:
Here, the child lives with the custodial parent and undertakes all the daily activities.
Joint Physical Custody
In this custody, the child lives with both the parents for a significant period and both the parents have equal rights over the child.
Here, the entire right of living with the child lies with one parent only. This custody happens in cases where the other parent’s nature is either abusive, violent, unstable or incapable.
None of the biological parents has a right over the child in this custody, and the Court grants the child custody to a third person.
Custody of the child to the father
The battle of custody for fathers can sometimes be challenging. Despite most courts having discarded the older notions of making the mother the primary caregiver, still many persons in society still hold such notions.It is believed that, in India, no one is a better caregiver than a mother. Unfortunately, this is not true all the time. Although, while deciding the custody, the mother is given the first priority, the father can get the custody in the following ways:
- The father may get custody of the child if the mother is willing to give up the custody.
- If the mother is mentally unstable, then the father is the next person who will get the child custody.
- If the child is above the age of 13 years and expresses his wish to stay with the father, the Court shall grant custody to the father.
- The father will get custody in situations where the mother has an immoral character that may affect the child.
- If the father proves that the mother is financially incapable, that may affect the child's future upbringing and might not take proper care of the child.
- If the father proves that the mother has a dark background and if the child stays with her, it will prove to be fatal to the upbringing of the child and may even affect his mental and physical growth.
- The custody of the child will go to the father if the mother is a convict herself.
In Sanju V. Sobhanath, the Allahabad High Court gave the Father custody of the child because he has a better financial condition than the mother. But the points as mentioned above are not exhaustive as it varies depending on facts and circumstances in different cases.
In Tejaswini Gaud v. ShekharJagdish Prasad Tewari (May 6, 2019), The Supreme Court observed that, in determining the issue of custody of a minor child, the paramount consideration is the `welfare of the child' and not the rights of the parents under the statute for the time being in force. But the welfare of the child should not be measured by money nor merely by physical comfort. The word ‘welfare’ must be considered in its widest sense. The religious or moral welfare of the child, the physical well-being and the tie of affection. If the custody is not granted to the respondent (father), the court would be depriving both the child and the father of each other’s entitled love and affection and since the child is in the tender age of 1½ years, her choice cannot be ascertained at this stage. It was observed that the father was the child's natural guardian, and he would be entitled to the custody of the child, and the appellants had no legal right to the custody of the child. Thus, the respondent (father), was entitled to the custody of the child since the child needs care and affection of the father.
Here, the question arises whether a father can fight for a Child’s Custody if his name is not on the Birth Certificate?
The father’s name is listed on a birth certificate or not can have a significant impact on his custody rights. In most cases, if the person’s name has been listed as the child’s father on his birth certificate, courts will conclude without question that he is the child’s legal father. The father will then be granted various custody rights considering to be the legal father of the child. In many cases, if the person is not the child's biological father, but if his name is listed as the child’s father on the birth certificate, courts may still grant him custody rights. The Court may also impose various duties on him, such as paying for the child support if this arises in the future. But if the father’s name is not listed on the child’s birth certificate, the Court may often not grant any custody rights over the child to the father, be it partial or full custody. If he wishes to gain legal rights and is also the child's biological father, he will have to undergo a paternity test to prove to the Court that he is the biological father.
The custody battle can be difficult to win for a father, although the courts do not discriminate against fathers. Whether a father is going for the full custody or joint custody, he should be prepared for difficult child custody combat, especially in cases where the child's mother is also fighting for custody. For a father to get custody, he should timely pay all the payments for child support, build a strong relationship with him, give him respect and also to the mother. The father must maintain accurate records attending all-important school and social gatherings to make sure everything he is doing provides a good life to his child.A child is mostly attached with his mother, so when a father decides to have custody, he must think about the child’s wish as well and what would be good for his life because custody battles are already traumatic and an exhausting experience for a child to go through. In the case of Y. Varlakshmi V. Y. Kanaka Durga Prasad, the Andhra Pradesh High Court observed that the child was happy with the father, so he was given custody. Therefore, the first priority of a father must be to make sure that everything he is doing for his child is to provide him happiness and a good life.
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Tags :Family Law