How to get child custody in India?

Whenever a marriage crumbles, it is the child who suffers the brunt of it the most. Child custody means the responsibility to care, control, and maintain the child awarded by a Court of competent jurisdiction during separation or divorce proceedings. Child custody can be awarded to either parent depending upon the circumstances and keeping in mind the welfare of the child. If you wish to get the custody of the child then you will have to retain the services of the best lawyers in Chandigarh who will fight tooth and nail to make sure that your child’s welfare is not compromised and you are awarded the absolute custody of your child.

What do you need to do to get your child’s custody? Well, there are a whole lot of things that you need to keep in mind to get the child custody and the following is a preview of a very detailed procedure:

1. Retain the best divorce lawyer in Chandigarh

Yes, this is the inescapable and un-skippable step because you cannot win, no matter how strong your case is on merits unless you have the aid and assistance of a lawyer who can put forth your side of the story with the right amount of zeal and is well equipped with judgments and laws that favour your stance. Therefore, book an appointment with us now to get connected to the best divorce lawyers in Chandigarh.

2. Understand the doctrine of ‘tender years’

The doctrine of ‘tender years’ imply that until a child is 5 years old, the custody of such child shall remain with the mother (unless she is found to be unfit) as till the age of 5, the child needs the nurturing of the mother. However, this does not mean that the father will have no right to seek custody of the child during his ‘tender years’ and we will cover this aspect in the coming paragraphs and points under the head of ‘welfare of the child is of paramount consideration’.

3. Understand who is a natural parent as per the law

Under the Hindu personal law, the mother is the natural guardian of a legitimate boy or a girl below the age of the 5 years and the father is the natural guardian of a legitimate boy or a girl above the age of the 5 years. However, the mother is the natural guardian and after the mother, the father, of an illegitimate boy or a girl irrespective of the age.

4. Welfare of the child is of paramount consideration

Irrespective of the rights of the parents conferred upon them by various statutes, the court while awarding custody of the child is primarily focused on the welfare of the child as it serves as the paramount consideration in child custody cases. This means that even if the child is over 5 years of age, but has been staying with the mother while the father is separated, the court may come to the conclusion that the welfare of the child is in staying with the mother.

5. Ascertain the place of custody action

Under the Hindu Minority and Guardianship Act, a child custody action can be initiated at the place where the child is presently residing. For e.g.: if the child is presently in the physical custody of the mother who is residing in Chandigarh and the father is in Mohali, then the custody action will be initiated in Chandigarh.
However, if a divorce proceeding under the Hindu Marriage Act, 1955, is already in motion then the parent who wishes to seek legal custody may prefer an application under section 26 of the Hindu Marriage Act, 1955, for child custody.

Ascertaining the jurisdiction plays an important role as your case will be dismissed if the jurisdiction is not established by you.

6. Understand what you want and file the custody petition

You need to understand what you want out of the child custody case. By this, it is suggested that you need to be clear whether you need physical custody of the child or are you only looking for visitation rights. Visitation rights mean that the non-custodial parent can have access to the child and will be responsible for the care and maintenance of the child on the day(s) as fixed by the court. When a petition for divorce or custody is preferred, visitation rights refer to the authorisation granted by the court to a noncustodial parent to visit his/her child or children.

7. Establish that the other parent is unfit

During the course of child custody action, it will work in your favour if you/your lawyer is able to prove that the other parent is unfit to keep the child under his/her custody.

We have now understood the complexities and all the steps involved in child custody in India. Make sure that you have the assistance of the best divorce lawyers in Chandigarh for your child custody-related queries. Do you have more questions in mind? Contact us, now.