Child custody after remarriage
UK
(Querist) 23 March 2012
This query is : Resolved
Hi,
Im new to the forum however, I've been looking for the guidance in my divorce and related cases on this site. I have a question. My husband has filed for divorce on the grounds of adultry, he has some police records relating to that (the whole scenario of adultry was manufactured by him and hid lawyers). Following this I filed for DV and also police complaints as my husband and his family had started harassing me even more, which led to FIR where anticipatory bail was rejected at the distt level but was granted by the HC. The concerned SHO however was bought by my husband and has made a record that all my complaints were lies. The sucker has actually said it in so many worlds that i have lodged false complaints. Anyway, now after fighting a dirty battle for 1 year we are proceeding towards divorce settlement in mediation centre, I want to settle the matter for the sake of my son as he is really getting hassled by our fights and the legal battle. My husband wants me to sign on these 2 weird conditions in the settlement document:
1. If I remarry, I will pass on the custody of my son (5 years now) to my husband
2. If I go out of Delhi/NCR for work, I'll pass on the custody to the father.
Keeping all of the above in mind, what wud be my remedy in future if I remarry, as obviously I dont ever want to pass the custody of my son to his father. Will I be able to fight it out in the court and keep the custody even if I agree to the above condition now? He wont settle the case w/o me agreeing to the above term in the divorce settlement.
Please advise.
SAINATH DEVALLA
(Expert) 24 March 2012
Dear Querist,
It is the children who face the heat for the faults we commit.It is a pity that in a country,which is considered to be traditionally rich,marriage values have been given scant respect both by the husband and wife.Just assess the mental condition of your child.I don't think a 5 year old boy is innocent to the hapennings.
But anyway,the act of your husband,as stated by you,is contrary to human values.If you have really filed a DV cases make it stronger and teach him a lesson.I am suggesting you this thinking the contents of your query are true.
As long as you are unmarried,you will have an equal share of your son's custody.If you remarry your husband,if he desires can claim for the complete custody of the child,if he remains unmarried.
V R SHROFF
(Expert) 24 March 2012
try Legal separation, carry on for a year, then if he come up with mcd, go for it with condition of custody with u.
UK
(Querist) 26 March 2012
Thanks Mr. Devalla and Mr. Shroff. The lagal battle is going on for a year now, and right now I'm literally almost willing to give in to any stupid demands of my Ex husband, precisely to save my child from the mess. I cant see him in the court rooms and police stations any more, and as you rightly said...he is not innocent to what is going on. But we all come with our own set of destiny i guess. So, right now what he is wants me to agree to is... 4 days of visitation rights each month, plus 50% of vacation time. So, that means I have the custody, and he has the visitation rights. My Question is, if I get remarried, and refuse to give him the custody, will he not have to file a petition in the court and will have to fight legally to get me to give him the custody. Will the court at that point not take into consideration my son's point of view and how good a mother I am, and capable of providing my son a good living?... OR signing on this terms now will mean that i will HAVE TO give him the custody? Thanks again.
V R SHROFF
(Expert) 26 March 2012
Child's interest is paramount consideration. So Court will decide, who can grow child well, educate, keep healthy, in moral atmosphere?
All conditions can be overruled, gets void, if proved.
is it OK??
UK
(Querist) 26 March 2012
Sure, so current agreement (in MCD document) wont be binding, then it will be almost a fresh custody battle...right?
M V Gupta
(Expert) 27 March 2012
Visitation rights to the husband means that the custody of the child will be with the mother and husband is allowed to meet the boy and spend time with him on specified number of times and at places specified in the agreement. This agreement can be changed if you are remarried, after taking into account the desire of child. For this ur husband will have to move the court.
UK
(Querist) 28 March 2012
So that means it is ok if i agree to his term that 'ill hand over the child's custody to him when i remarry' in the MCD agreement document? and to exercise that condition he will have to move the court. What meaning will the above condition have in agreement if the court will still take into consideration the 'child's desire' and if we still have to battle out for the custody.
Guest
(Expert) 29 March 2012
Whatever agreement you do, should be fully thoughtful and sensible that may not prove to be against the interest of the child at least till his attaining the age of majority. Otherwise selfish interest of anyone of you, if kept at the forefront, can ruin the life of the child.
UK
(Querist) 29 March 2012
Thanks for your reply Mr. Dhingra. For selfish interest, Im not sure what selfish interest can a mother have apart from seeing her child grow into a complete and happy human being, wherever he is. In my case, my husband is not capable enuf to handle the child as he is TOO busy with work, thats the reason of my marriage also falling apart. My Q remains, if I agree to something in MCD document today.. how enforceable wud that be in the future. What importance does teh child's wish (as to who he wants to live with) play in the court?
Guest
(Expert) 29 March 2012
Any such agreement if got authentication of the court, as a part of the DV case, will hold good. But, still agreement can be challenged if noticed that the custodian is not able to properly maintain the child.
So, better try to add such conditions in the agreement that the interest of the child is not harmed in any case.
