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raghav   23 January 2015

Grand parent custody after deceased son

Dear Sir,

I am a grandparent and my Son has died 4 years back, and my daughter in law taken the custody of the 5 year old child (my grandson), and staying with her parents in a different place. We (along with my younger son) used to visit the child frequently (once in 3 months) and speak over phone, and they used to bring the child to us 6 months once by pleasing/convincing my in-laws parents. 

Now, my daughter In-law got re-married last year. But after that she is not answering our calls to speak to my grandson, and recently we came to know, that my grandson was been given custody to her parent who live in a different place, when I asked her father, he confirmed.

My concern,

He does not get a shadow of his father, now he is going to miss the mothers love, Now he is living somewhere with her parents. when i requested to have my grandson for a week with us, it was denied by her father(they say they will come and show him and take back on the same day if needed), As a mother we believed she would be taking care of him even after the remarriage, We did not seek the legal services as long as my grandson stays with his mother. Now, what options are left with me (along with my younger son) who also wanted to take the custody of my grandson and provide education and all support for his wellness. My younger son is well educated working for a MNC in different state) is also married and have a kid.

What rights do we have over my grandson, and what is the possibility of gaining custody over my grandchild. Please guide, Thanks



 7 Replies

Tajobsindia (Senior Partner )     23 January 2015

1. If natural mother is not keeping custody of her minor with her and has re-married meanwhile then via litigation either her lineal ascendants (her parents) or deceased natural father's lineal ascendant (child’s grandparents) should claim custody of minor via a Court decree. 

2. In above scenario if approaching Court which should be within ordinary residence of a minor then it is advised to file an interim visitation application also under S. 12 GWA pending finality of main petition under S. 25 r/w S. 10, 17 GWA for custody of minor by grandparents.

3. The ideal time limit to have filed a petition in jurisdiction Court is under 180 days to seek worthwhile remedy since ex DIL’s re-marriage took place and/or the private vitiation arrangement seems to have had virtually stopped. 


We are not aware since when (month/year) the private visitation stopped nor since when the private custody arrangements transferred within her side of lineal family members by ex DIL (these form material records in advised litigation scenario). 


4. Judge long term custody issues r/w consult with an Advocate specializing in child custody matters in jurisdiction where ordinarily the child is residing since last 180 days as and if when a petition is indexed in court registry. 


5. The more a minor ages r/w the more time private custody arrangement in place the lesser claims deceased natural father side petitioner(s) have to get custody transferred to them unless ex DIL lineal descendent are shown unfit to have custody of the minor further  r/w uncle of minor is not considered worthy petitioner which is made out bare reading your brief before me – weigh all these paramount considerations before familial sentiments convulses into painful lineal custody battle of deceased son’s minor, end resulting into getting firmest visitation with which also, memory of deceased lenience is well  cared for are some of my 2 Cents….


[Last reply]

2 Like

vicky (manager)     23 January 2015

Originally posted by : Tajobsindia

Welcome back tajob ji, were missing you here.

raghav   24 January 2015

Thanks for your reply. However, I could not understand all the legal terms. But, I can understand that there is a lesser chance for us to get the custody.

My problem is, Currently where my grandson is residing does not have a good school or hospitals (min 10 Kms), And moreover they move from place to place every 2 to 3 years because of their job. this will affect the child education, changing schools every 2 year is not easy for the child. And we are also old people, our visitations also gets into trouble, when they move to distant state. Can this be shown as unfit. what does unfit refers to in this situation.

Currently my grandson are in a different state. So, which court should we file the petition for visitation or custody. My son was living with us when he died.

T. Kalaiselvan, Advocate (Advocate)     24 January 2015

You have to apply for custody in the place where your grandson now resides. Since your daughter in law remarried and left the child under the custody and care of her parents, it is obvious that the child is no more under the care and custody of its mother thus you are equally entitled to the custody of the child provided you prove and establish the other ground realities what you have stated here. In the meantime as suggested you can an application for visitation rights as an interim relief. Consult your lawyer and proceed with the child custody case and also visitation rights application.

1 Like

Adv k . mahesh (advocate)     24 January 2015

you can follow as explained above and thus any case is pending your jurisdiction court and if case is there in what stage 

raghav   25 January 2015

Thank you for your inputs Mr. T Kalaiselvan,

@Mr. K Mahesh, Currently no case was filed and pending on both sides.

T. Kalaiselvan, Advocate (Advocate)     26 January 2015

In the given situation, you may first file a child custody case along with an application for visitation of child at periodic intervals or on the terms you may specify as an interim measure, consult your advocate and initiate an action immediately so that you maintain the the affectionate relationship with your grandson without a long break.

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