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Sameer Desai (Office In-Charge)     30 April 2013

My minor son's custody battle

  • Chronicles of the case.

  • After divorce (Oct-2011) my wife expired in Jan-2013. I filed for my sons permanent custody which is presently with my in-laws. I have given (maintaince+alimony) 8.50 lakhs. But because of my wifes stubborness she kept the permanent custody with her to which I said yes and gave up my rights. (my biggest mistake for which I am suffering) 
  • We filed on in the month of September-2012. (non app)
  • Than the court has objections which they told us in the month on 3rd October-2012. (non app)
  • The court/petitioners then sent a notice via registered AD 19/10/2012.
  • The hearing was fixed on 06/11/2012. The respondent had come & they insisted to meet Kartik at their place on 11/11/2012. (Lawyer app)
  • I had gone to meet Kartik and he was excited to meet me. The meeting went well.
  • The next hearing in fixed on 21/12/2012. But the Judge was on leave.(Lawyer non-app)
  • Judge was on leave so the hearing postponed to 04/02/2013. My lawyer madam spoke to Judge.
  • They have changed the their lawyer & filled a reply against our interim applications.
  • The Judge & Counselor were positive about the access. The Judge met Kartik in her chamber. Every second/fourth Sunday - 10.00 to 1.00 pm.
  • Next date fixed to 10/04/2013.
  • Mediator meeting on 11/02/2013 at 3.00 pm with court appointed Mediator. Mediator fees borne by me.
  • Mediator - Respondent meetings was on 15/02/2013 with father-in-law & next meetings with mother-in-law on 02/03/2013.
  • Mediator has another meeting with both of them on 06/04/2013. My mediation is over & theirs is pending as father-in-law they did not turn up in court becoz hurt his leg.
  • Untill the mediation report goes - only than hearing on 10 th of April.- My adv spoke to the judge. Judge said to give the vacation application to the mediator for access during vacation.
  • Next mediation on 20/04/2013 - last one.
  • Mediation failure report sent - got vacation access thru the mediator from 22 May to 10 June. They(respondents) are going from 10 May to 20 May.
  • Mediator had told them to come to the court on 22/04/2013 for the Judge to pass the orders on vacation access but the stupid respondents did not turn up.
  • So we are going to sent them a notice for them to attend the court on 29/04/2013 for the vacation access. Along with our vacation application. They have skipped the court on 29/04/2013 & the Judge said on the basis of the Mediators orders I can take the child.
  • Next hearing on 23/05/2013.
  • Kindly advice as to what I can do to expidite the case proceedings.
  • I am financially strong than the respondents (maternal grandparents) also have a bigger house to stay. The child is very very comfortable with me & although I get to meet him only 2 hours in a month. He loves my company. I give me best of the best things & he has started to acknowledge the same.
  • I have also have taken snaps of the place where my in-laws stay & also the snaps with me. They stay in utter sh*t blgd.
  • My mother-in-law is uneducated & father-in-law is a handicapped person. (leg amputed due to diabetics)
  • I definitely have a edge over them, than why the court takes so much time to pass the permanent custody orders.
  • I am not sure also if the court will pass the orders in my favour or not.


Learning

 37 Replies

Tajobsindia (Senior Partner )     01 May 2013

1. Donot loose hope. These are normal happening in any proceedings in a Court.
2. First if as per mediation you have been granted vacation custody then seek certified copy of the Order and taking help of police (in plain cloths - take beat constable with you) and knock at their doors and take temp. custody of child on appointed date (22-5-2013)
3. Meanwhile try putting main case before Vacation Judge and I am sure there should be a vacation Judge to hear your case.
4. On your admission on giving up custody of child during divorce all I can say that you have right to file an application called 'change of circumstances" where you can mention where welfare of child rests best and it may take time but custody may be switched to you and side by side see that there is a healthy female and family ambience in your home too. You may also pray for home visit report by allowing appointment of a Court commissioner whose fees you can meet just like earlier fees you met you say so and along with this file child interview application to decide on child preference.


BTW age of minor?  

 

Sameer Desai (Office In-Charge)     01 May 2013

I am actually far superior to my in-laws & also my mother is fit enough than me to take care of my son (at the age of 67 she still goes to the Gym)

These guys just want to hold back my son because they have grudges against me as their daughter expired.

what is home visit report & what is child preference report as my son is just 4 and 1/2 years old.

He is been tutored to such an extend that once he told me that I killed his mother, not to stay back at my place, not to eat with me, not to utter father,.......the moment he talks about me in their house they scare him ot shout at him. Due to gods grace inspite of such heavy tuting he is still so compfortable with me & just get to spend around 2/3 hours in a month.

Why does'nt the court give the custody to the biological father when one guardian has expired?

I even told the Mediator that I am ready to do anything for my son like sign an undertaking to not get remarried or waive off the entire amount i have paid as maintaince/alimony. but the mad people are not ready to listen.

Will I get the custody in the family court or I will have to knock on the doors of High court. I am unable to understand how the court functions - but one thing i have realised that family court in meant for the weaker s*x and men do not stand a chance their.

Regards,

stanley (Freedom)     02 May 2013

Patience and perseverance are the call of the day . . You being the biological father have every right to get the custody under change of circumstances but all these cases take years . 

The grand parents will do everything to instigate the child against you and try their best to delay the case .But ultimately a child seeks for the biological father or mother . Its only a matter of time before you would get it .

Sameer Desai (Office In-Charge)     08 May 2013

Dear Sir,

Please explain to me know about two things which are as given below:-

  • Home visit report by allowing appointment of a Court commissioner?
  • What is Child interview application to decide on child preference.?

Also can I put forward a petition for immediate shift of my son's custody till the case is going on in the court.

May be this is the fastest way to get his custody. Please suggest. Please reply to my query.

Regards,
 

Sameer Desai (Office In-Charge)     13 June 2013

Dear Sir,

          Why nobody is replying to my queries?  

Please I need help!!! I had just got vacation access for my minor son (4 years) for 20 days. He was so thrilled as he got all types of luxuries along with love,care & affection. So he did not want to go back to his grand-parents house. But I had to drop him back. 

What can be done to get his immediate custody? Atleast till the case goes on I need his proper access like on Bank Holidays, all weekends etc.... at the moment I have access only on 2 & 4 th Sundays and that to for 3 hours.

He is staying not ready to stay with his grand-parents but has no option. Although he is small is still knows about what is going on. He is also ready to speak in the court that he wants to stay with his father. The vacation access that he got to spent with me has got him very close to me. He knows the difference of staying with his grand-parents & father.

What do I do? I grand-father is a severe diabetic and his leg is amputed & grand-mother is illiterate.

The kid is very scared on them. But they are dependend on my sister-in-law who is young. I cannot see my son roting in the 250 sq feet flat with out any amenties. He is not even feed properly.

Please advise!!!!

Regards,

Sameer Desai

 

Adv Archana Deshmukh (Practicing Advocate)     13 June 2013

File for modification of earlier order (if visitation rights are granted earlier)  and seek interim custody (physical custody) of the child instead of the visitation rights.

Sameer Desai (Office In-Charge)     13 June 2013

Dear Madam,

          Thanx for your prompt reply but my Lawyer is saying by doing that, what ever we have filed earlier will no longer be valid. 

I am able to understand my Lawyer........why he/she is saying so.

I had suggested her the same thing........Shift of Immediate Custody.....for various reasons.

The court is taking a lot of time to give access.........out of sight means out of mind for the child. Can we ask for the child reference report........home report...........any other revelant report.......please suggest.

Regards,

Sameer Desai

Have a Heart Foundation (Sales & Mktng)     14 June 2013

being superior doesnt ensure custody... you have been abusing your in laws (calling them mad and what not )  the same way they abused you.. so that does not make you a better person.. the attitude, intention, and care giving nature is what going to take you further... (you also need to understand the state of grand parents who have lost their daughter and may further lose custody of grand child). they need to be counseled by professional psychologist so that they consider the paramount initerest of the child.. 

Its a sorry state of affairs... courts will take time to conclue and you have fair chance of getting custody..

your lawyer is not advising you rightly nor you are proceeding in the right direction inspite of suggestions given to you..

you have been taking opinions from all and  are totally confused with what to do and are stuck with what your lawyers says ..change your lawyer.. change your attitude.. 

you need to :

1) have a joint counselling sessions with profesisonal psychologist appointed  by court and have joint sessions with in laws and child.. 

2) make application for interim shift of custody.. serve advance copy of application to in laws and serve them notice ..(you can also take the matter on board).pray for urgent orders... go to HC if your prayers are rejected... 

Sameer Desai (Office In-Charge)     14 June 2013

Dear Sir,

          Thanx for your reply.......but what do you mean by serve them advance copy of the application my next hearing is on 18/07/2013. So should I tell my Lawyer to prepare it and send so that they come well prepared with their reply........but they are definitely going to reply negatively..........so is it up to the court to decide......for rejection or acception.

Sir I am unable to understand.........please explain. Are the HC more considerate in passing such orders?

Regards,

Sameer Desai

 

Sameer Desai (Office In-Charge)     14 June 2013

Dear Sir, A more thing is that what when we put up the application for shift of custody and if they skip the hearing then??? Becoz nowdays they come for one hearing and skip the other. In that case what does the court do? Please reply sir. Regards, Sameer Desai

Have a Heart Foundation (Sales & Mktng)     14 June 2013

yes tell your lawyers to serve them a notice along with the copy of interim shift of custody app. in that notice also ask them to serve you their reply (poor chances) in advance before 18.7.2013 so that time of court is not wasted.. 

on 18.7.13 argue your matter, if they are not present ..make immediate app to court to pass ex-parte orders... court may reject your app or pass orders... either way you get a chance to move HC...

deem chances if  lawyer will move accordingly.. :).. stil u can try . 

Sameer Desai (Office In-Charge)     14 June 2013

Dear Sir,

        I know it is very difficult to convince my Lawyer as he/she is very senior. His/her ego will get hurt that I am trying to teacher him/her about law.

In the HC do they have to be present for the orders to pass in my favour...........what next if the orders are not passed in my favour.......than what is the next step................back to family court???

Sir...........please advice..............thanx ..............God Bless. I cannot even concentrate on my job.

Regards,

Sameer Desai

 

Anjuru Chandra Sekhar (Advocate )     14 June 2013

How dare you tell a lawyer what to do?:)

 

A lawyer is like a God.  You should not win him by knowing law.  You can only win his mercy by pleading ignorance of law.  You have to do the "penance of ignorance" till he/she helps the court delivers justice to you.  Penance of ignorance includes deliberate avoidance of knowing about law.  Keep your eyes and ears closed whenever you get opportunity to know law.  Keep your mouth closed whenever you have something to say anything about law.  Always plead ignorance and stand before them like a school boy.   It is bread and butter for them.

Anjuru Chandra Sekhar (Advocate )     14 June 2013

Meraa bhi yehi problem hai.  You see if you are competent to prepare a draft and ask the lawyer to argue your case on those lines, he won't accept.  If you argue your case as party in person, the judge will not listen to you.  He will put his face as if to suggest : WHAT YOU KNOW ABOUT LAW THAT YOU DARED TO STAND BEFORE ME?  There is no guarantee the judge will look into the written content if yu appear as party in person....he would be of the view, "party in person kyaa likhegaa bakwaas". 

 

But if you hand over case to Advocate, you will be dissatisfied the way he is representing your case.  You know what is better way.  You will tell him "Sir. please argue the case on these lines only, it does not matter even if I lose".  He will tell you "I am not bothered about your losing or winning the case, you may be prepared to lose your case, I am not prepared to lose my case, because it involves my personal reputation too".

 

Hence knowingly you have to accept if he prepares an inferior draft.  Knowingly you have to accept if he says, you cannot file a Writ Petition in court, you have to start from Trial court.  He will involve you in three rounds of litigation to collect fees in every round of litigation.  Only two rounds of litigation means one round is loss of fees for him no?

 

Knowingly you will become bakraa if you know law.

 

 


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