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VN (VP)     28 July 2013

Do i have a good case for custody?

Hello all,

I need some advice urgently!

My wife and I have have been incompatible for a while, but have stayed together. We had our child through IVF and with the help of an anonymous egg donor. While I am the biological father, she is not the child's mother. Our child is two years old.

Due to a corporate restructuring I was forced to look for a new job and found a better (and higher paying) job in a different city. Now my wife is refusing to move as she has her own job in the old city. Despite my willingness to wait for a few months, she has refused to even consider the possibility of moving and is thus keeping me away from my child. My only options are to leave my job or live by myself, neither of which is acceptable to me. (I make 4 times what she does and our savings are important for the child's future). I don't believe she has the child's best interest at heart right now as she works full-time and the child is being taken care of by maids. (Her mother is no more)

My question is, if I were to file for divorce what are my chances of gaining sole custody of the child? These will be the points of argument that I am planning on using:

1. I am the biological father and, though her name is on the birth certificate, a simple DNA test will prove that she is not their biological mother.

2. Though she is working, I can provide a far better care for the child. There is no immediate female family member on her side who can help her raise the child and she is currently using domestic help. I can, with my higher earnings, provide for professional, educated child-care specialists who can take care of the child. If required, my mother can live and supervise the child's care as well. (In addition to me of course)

Would appreciate if some of the legal minds here can share their opinion on whether I have a strong case. if anyone is willing to take up my case (I am based in Mumbai), please contact me as well.

Thanks and Regards,


 8 Replies

Hemang (Advocate)     29 July 2013

She may not be a mother from biological view point, yet she is a mother of child under the law. She is again earning, who can spend and care for the child. Generally, the custody remains with the mother. She would never sacrifice her job in view of "created insecurity" and she would never turn up according to your desire. However, as far as question of custody is concerned, you may try your luck in the Court. 

1 Like

Nadeem Qureshi (Advocate/     29 July 2013

Dear Querist

the main point for custody of child is walfare of child, the court consider only this point so if you are able to prove that yoiu can be best guardian then her only then the court may pass an order in your favour.

1 Like

VN (VP)     29 July 2013

Thank you for your response. To clarify, I never asked her to leave her job nor do I want her to. I am even willing to wait a while for her while she finds an equivalent job in the new city. If we were making similar kinds of money, I would have given up my job to find something in the same city. But I make 4X what she does and all the savings are for the child's benefit.

If pursuing her career makes her happy, so be it. But isn't separating the child from the father intolerable cruelty?! if created insecurity is an issue, i am more than happy to hand over all my salary to her at the start of the month and subsist on whatever scraps she throws at me...but I cannot be separated from my child!

Sorry for venting; but I am frustrated in the face of such unreasonable stance on her part. And agains thanks Hemang and Nadeem for your responses.

Adv k . mahesh (advocate)     30 July 2013

you do not have a strong point to defend and take divorce

and only on job issue you cannot file custody of your child but one point your mother can look after only one point

about her staying in old job and not leaving that place means she may be getting promotion or higher pay think positively and if she joins in new job she may have to work from scracth again 

we can read from newspaper and listen from other that one parent is working in other city and other parent is working in other city for the sake of children well being in future 

think positievely and do not go for divorce for this issue 

Hemang (Advocate)     30 July 2013

There is bound to be a frustration (I would also say, a depression as well with few people)  in the life, when some one who is "dearest to the heart" is away from us. But, come out of frustration. It will never gear up or motivate. It is a great enemy of the person. So have a courage and be strong and tough. You should shower a love as much as possible. Make an endeavour to love your wife and be loved. Create a good repo so that a confidence in you is generated. It is good that you are not counting in terms of money and ready to sacrifice. But money can do no better than the "love, feelings, sentiments and bound". so far as employment part is concerned, a person has to serve where his employer desires to post. Generally in Civil Services, the trasnfers were frequently effected and the employees were going in a litigation to get the transfer stayed. The courts in those days were granting the stay against arbitrary transfers. However, the courts have laid there hands back in the matters of transfers. Now they say, "Transfer is an incident of services". And it is for the employer to decide where the services of the efficient Civil Servants should be utilized. However, in your case, they may be companies and the companies may not have branches at all stations. So there is an impediment, but has to be tolerated. Also, in view of the unwillingness of your wife. 

Adv. Chandrasekhar (Advocate)     30 July 2013

As suggested file a child custody case and in that file interim application for visitation rights.  Visitation rights you will get and those will ameliorate your frustration to some extent and regarding the custody of child court will give its verdict keeping in view of the child's interest as paramount.

stanley (Freedom)     31 July 2013

@ Author . 

1. As you child is 2 yrs old normally in indian courts upto the age of 5 the custody goes to the Mother . 

2. File Gaurdians and wards act and ask for visitation and custody . 

3. Visitation would be granted  hence as your child is small build up your relation with your child . 

4. As you are aware of indian courts how they function and by the time your case comes up for custody the child would cross 5 yrs of age :-) 

5. The courts consider paramount importance that is welfare of the child . 

When we consider the term welfare of the child Its not to be measured by Money alone .The moral and religious welfare must be considered as well as its physical well being nor can the ties of affection be disregarded .

Wish you all the best in your cause .

Nadeem Qureshi (Advocate/     31 July 2013

file a suit for custody, walfare of child is the most important point to dicided the case for court and you prove that you are in the walfare of the child then you can get the custody order.

no need to be frastrated. 

feel free to call

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