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vasudha Kumari (research)     18 September 2010

divorce and child custody

I am a 35 yr old woman who has decided to get divorce from a husband who is incompatible in everyway. I have been a victim of domestic violence and abuse not only by him but by his family mebers too. I am discussing with my lawyer about divorce and child custody. I have a 3 yr old girl.  I have some how managed to convince him for mutual divorce but each day he changes his stance. I do not think I'll be able to get divorce easily from him. I never was emotionally and financially satisfied by him. Also we never had anything physical for more than 3 years. Due to lovelessness, I started getting closer to another man. We used to chat and share many things. All my private chats with him and mails to my friends who were advising me, have been hacked by him. He now has proof with him to declare in the court that I am a woman of lose character and can demand for permanent cutody of the child. I know he is not capable enough to bring up the child as the atmosphere at his place is not congenial, progressive for the growth of the child.

Now he has raised certain terms and conditions for child's custody. He wants joint custody of the child. The conditions are;

1. Child will retain fathers name in all official documents. (I had to agree to this)

2. I will have to seek his permission if I am relocating with in or outside country.(I do not agree to this)

3. Childs religion will remain the same.(I do not mind)

4. He is not ready to give any alimony but agrees to deposit some amount for the child which will be given to the child when he attains majority. He will have his family members as nominees for the investment.(I dont need any money from him but the nominee thing could become little complicated if his family members do not cooperate in future)

 

I am in need of some advise at the earliest. My only concern is my childs well being and a progressive environment where he becomes a confident individual.



 8 Replies

Tajobsindia (Senior Partner )     18 September 2010

@ Author

For your 1 till 4


1.
Child will retain fathers name in all official documents. (I had to agree to this)
Take: You are saying that you have to agree to this so there is not going to be dispute if this is put in MoU.


2. I will have to seek his permission if I am relocating with in or outside country.(I do not agree to this)
Take: You should agree and even Hon'ble SC is with you in such matters as per recent binding decision by which if a mother re-locates in and or outside India the father (non custodial) person can't do much except bind with some visitation conditions even when this stage comes. So you need to agree to this and let time take its own course.


3. Childs religion will remain the same.(I do not mind)
Take: You are saying that you have to agree to this so there is not going to be dispute if this is put in MoU


4. He is not ready to give any alimony but agrees to deposit some amount for the child which will be given to the child when he attains majority. He will have his family members as nominees for the investment.(I don’t need any money from him but the nominee thing could become little complicated if his family members do not cooperate in future)
Take: One side you say he is financially weaker so no point haggling over alimony. Ask him about the F/D amount and agree to nomination part. It is not complicated if you pray before Court to get the F/D be made with his side of family be it Nominee and let the F/D be deposited in Court with release of the same subject to showing your and child ID proof at the time of maturity. This way neither the F/D becomes a bone of contention nor he will have much of a say before the court bze you are agreeing to both terms that also of his !.



Additional Take A:
On "joint custody". In a way this is a better option by which he also can exercise child rights in days to come means that he will have a say in child up-bringing like school selection, marriage, higher education, school / college outings (educational tours ex base city location) etc. But, once the child start living with physical custodian parent then the child is more tuned to that side of parent and with passage of time Court also favors the custodial parent hence let this "joint custody" clause he is asking to put in terms and conditions also remain as it is.


The main issue which you should aim is; based on your incompatibility with him and a female child in between and outside marriage relationship (closeness or just a fleeting whatever it is replier don't want to get into personal details) is to come out of all these in-compatibilities issues as fast as possible that also via a well mediated (as you say yourself) MCD route based on Agreement that also which leans more towards a child based so it is a good deal overall he has offered to you and if everything works fine between your two then you with your child are out of THE MARRIAGE anywhere in between 6 months after putting Jointly S. 13 B HMA Application.


After Decree in MCD what you and your child does it will not be any issues with your ex Husband as he has some paper clauses (Decree) with him and you have not only a MCD Decree but free to marry or whatever after 90 days of appeal period that also with bonus of retaining the child's custody with you and liberty to withdraw F/D deposited with Court on production of maturity ID proofs and need not have to meet him after 15 years !.


BTW, two points that you missed from thinking process and or I don't see from your above briefs are;


1.
Maint. (Regularly) for Child till 18 years issues?


2.
Visitation rights of child with her father and grandparents if any issues?


For 1 take:
If you really think the marriage is dead and child should be given priority over maint. and present husband is agreeing for MCD route if maint. is made non issue then go for MCD and donot stop MCD phase at Maint. part (child related) plus you say you are financially better off than HIM so that also means you can well take care of the child financially.


For 2 take: Since he is seeking "joint custody" then let the visitation part not be discussed at this stage. When time comes for Execution of "joint custody" then one can deal with it. However, as a surprise bonus during Statement you may offer couple of hrs. visitation once a month to father and his side of family at a neutral place convenient to child "ordinary residence off" with ex wife remaining at visible distance but not a hearing distance. This you are giving to your child a social gift too and as a child can't be tutored to remain aloof of her father and father side of family no matter how in-cordial child's parents’ relationship were before seperation !.

1 Like

Adv. K.S.A.Narasimha Rao (legalquestadvisor@gmail.com )     19 September 2010

Smt. Vasudha Kumari,

I request you to leave separately if really your husband is creating several problems, time will make him realize the mistakes done by him but I hope divorce is not solution. But if you feel divorce is solution, then definitely the impact will be on the child. So think twice, any how you can hardly enjoy the life physically not more 8 years physically but your child requires to suffer atleast 22 to years with out either of the parent.

If you are decided then go ahead as my learned friend Tojobsindia suggested.

1 Like

(Guest)

For the first three points, I need not comment as you yourself have got a definite opinion.  The last point puts a difficult situation to you.  First, he is not paying any alimony.  Next for the child he would deposit only F.D. and cannot be used till he attains majority. That means, during the growing age of the child, for his maintenance, educational and medical expenses, he is not taking any responsibility.  It is totally outrageous proposition.  You have to maintain child till he attains majority and he simply puts the money in the bank.  Further, nominating some one is also quite useless clause.  If you accept for the proposition that he can put every month in fixed deposit, he can give the bank the authority that amount can be withdrawn by the child on such and such particular date, when he attains the majority.  There is no need to nominate someone from his family side.

2 Like

Tajobsindia (Senior Partner )     19 September 2010

@ Prabhakar


1
. She already has a opinion on Maint. - read her and I quote her "I dont need any money from him but the nominee thing could become little complicated if his family members do not cooperate in future)"


2.
What she does not have a clue is on "cooperation of family member in future" hence my reply stands on better footing and many MCD folks have already done that and Court order sheets are full of such doable line in Order (Decree Sheet) as you might be aware of !.


3. She wants to be out of current situation and has somehow made him agree for MCD so less confusion she is given here the bettter nd faster she can come out of it.


4. When one party says she does not need maint. then there is no need to for giving confusing opinion on it !

1 Like

vasudha Kumari (research)     21 September 2010

Following are the points my lawyer has incorporated in the final draft. Please read and advise. I have been liberal with his child custody demands.

"Both Petitioners agree that the First Petitioner shall have permanent custody of the minor .The Second Petitioner shall have access and visitation rights that will be mutually decided between the Petitioners, keeping in mind their occupations and professional commitments. The Second Petitioner shall also have access and visitation for half the summer vacation of the minor once he is enrolled in school. The minor  shall spend the festival of Christmas with the Second Petitioner. Additionally, at all times when the Second Petitioner resides in the same city as the First Petitioner, he shall have access and visitation to the minor  over the weekends.

10) The Petitioners agree that in the event of either parties relocating outside the country they shall mutually revise and review the custodial and visitation agreement that is aforementioned.

11) The First Petitioner undertakes to keep the Second Petitioner updated of any changes in the contact address of the minor child, and will also intimate the Second Petitioner of any plans of relocation within or outside the country.

12) The Second Petitioner shall make periodic investments towards an insurance policy/ recurring deposit/ joint account in the name of the minor until the child attains majority. The First Petitioner shall be the nominee to all such investments made, and if in the case of any unforeseen circumstance, the First Petitioner, shall receive the amounts invested and shall utilize the same for the sole benefit of the minor child, . The Second Petitioner shall periodically update the First Petitioner on the nature and amounts of all investments made for the benefit of the minor child, . The First Petitioner shall not claim any amounts towards maintenance or alimony from the Second Petitioner for herself.

13) In the case of any unforeseen circumstance such as death or permanent disability towards the First Petitioner, the Petitioners agree that the Second Petitioner shall be given permanent custody of the minor child,.

14) Both the Petitioners agree that any major decision concerning the well being of the minor child, shall be done jointly"

vasudha Kumari (research)     21 September 2010

My only concern is during the time my child is visiting my husband for christmas vaccations and half summer vacations (as is drafted in the final petition), he would be influenced by grandprents and other family members. Is it safe to leave him alone with my husband and grandparents?


(Guest)

So many things have been left out in the draft for future without any decision, saying that both the petitioner no.1 and no.2 will decide at a later stage.  Both the petitioners are estranged people.  They cannot decide themselves any thing at present or even in future mutually.  That leads to litigation and both of them have to spend their time to visit court for getting clarification of this agreement or for settling the issue in dispute.  It is better to decide each and every thing precisely in the agreement, instead of hurriedly reaching to a settlement with an intention of getting quck divorce.  One important point is missed in the draft is, that if any one of the petitioners go for marriage, what will happen to the custody / visitation of the child.  If the petitioner no.1 dies the child custody goes to petitioner no.2, but if petitioner no.2 dies, whether his parents cannot claim visitation rights?  It is silent on this aspect also.

Without showing urgency, sit calmly and draft every provision, without giving any scope for future litigation. 

Adv. K.S.A.Narasimha Rao (legalquestadvisor@gmail.com )     21 September 2010

I agree with ld. friend Mr. Prabhakar


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