A FATHER’S CUSTODIAL RIGHTS OVER HIS CHILD:
The separation of a couple not only affects the husband and wife but also affects the whole of their family, including their child. While the parents’ right to child custody is respected under Indian law, the welfare of the child is the most important factor to consider when deciding who gets custody of a minor child. It refers to the process of a custodial parent (who has been granted authority) regulating, caring for, and maintaining a child below the age of 18 within certain parameters, including financial stability, knowing the child, lifestyle, and so on. The custodial parent is fully accountable for the child’s education, development, medical, emotional, and physical well-being, whereas the non-custodial parent only has the right to access and meet the child. In many cases, both parents have access to the child, though physical custody is commonly administered to one of the parents.
Nobody, not even a father, is considered to be a better legal guardian than a mother. Although mothers are always given priority when it comes to child custody, if the mother denies custody of a child, the father may obtain custody of the child. In contrast, if the mother is mentally ill or unable to care for the child, the father is the next most likely candidate for custody. The custody of the child below the age of 5 is given to mother on the grounds of that the child of such tender age needs motherly affection. Custody of children in India above the age of 5 and below the age of 18 years is the right of the father. The ultimate rule for granting child custody is the best interest of the child If the child is over the age of twelve and expresses a desire to live with his father, the court may grant custody to him.
There are various types of child custody in India that have held the views of the best interests of the child. That is needed to be given the utmost importance. The court grants the custody rights under certain rules and regulations. evaluating the sensitivity of the case.
- Physical custody: When physical custody is granted to a parent, it means that the minor will be under that parent’s guardianship, with visitation and periodic interaction with the other parent. The goal of this type of custody is to ensure that the child lives in a safe and fulfilling environment, receives affection from both parents, and has a happy family.
- Joint custody; When a child has joint physical custody, he or she spends significant time with both parents. In such a case, both parents have equal custody of their children.
- Sole custody: If one parent is proven to be abusive or unfit, the child’s best interests would be served by removing the child from the situation. As a result, if the other parent is fit, the child will be left in his or her custody. Sole custody means that only one parent has the legal right to live with the child. This is common in situations where the other parent is abusive, unstable, violent, or incapable.
- Third party custody: In this case, neither biological parent has custody of the child. A third person is given custody of the child.
You can get legal advice from our child custody lawyers online at Law Answer Online.
Who is entitled to child custody?
At present, most family courts attempt to give both parents equal rights to legal custody. This is intended to encourage the child to engage with both parents instead of just one. However, in some cases, the court may only grant legal custody to one parent. This is especially true if one of the parents is deemed incapable of making decisions on behalf of the child.
When deciding which parent should be granted legal custody, the courts may take into account a variety of factors, including: Legal custody decisions, like any other child custody decision, are made while keeping the child’s best interests in mind. This means that the child’s needs take precedence over either parent’s personal desires or intentions. There are no set criteria for determining which parent has custody of the minor, though there are mechanisms in place to enforce the grant of custody to a specific parent under the Guardians and Wards Act. The subjective nature of standards may be perceived to favor the mother. There are many supreme court judgements on visitation rights for the parent who is not given the custody.
However, if you’re a father fighting for custody of your children, there may be some things you should pay attention to and be cautious of. Consider the following: Be wary of abuse allegations: When it comes to allegations of abuse against men, the law favors women. Make sure you don’t create scenarios that could potentially substantiate such allegations, which could result in you losing your visitation rights.
WINNING CHILD CUSTODY
There is no set basis for evaluating which parent can have custody of the minor, though there are measures in place to enforce the grant of custody to a specific parent under the Guardians and Wards Act. The personal characteristics of standards may be perceived to favor the mother.
Notwithstanding, if you’re a father fighting for custody of your children, there might be things you should also keep in mind and be cautious of. Take into account that you should be extremely cautious about abuse allegations. When it comes to allegations of abuse against men, the law tends to favor women. Make sure you don’t create scenarios that could potentially substantiate such allegations, which could result in you losing your visitation rights.
How Can a Father Claim Custody for His Child?
In India, no one is assumed to be a better nurturer than a mother. Unfortunately, this is not always the case. Though the mother is given priority when it comes to custody, the father can achieve it in the following ways:
If the mother is prepared to give up custody of the child, the father may be granted custody.
- If the child is 13 years old or older and expresses a wish to live with his father, the court must grant that wish.
- If the mother has a morally reprehensible character, that might have an impact on the child, the father is granted custody.
- If the father can justify that the mother is financially incapable of raising the child, therefore affecting the child’s upbringing in the future, as well as his own financial ability to care for the child,
- If the father can demonstrate that the mother’s background is tainted and that keeping the child with the mother will be detrimental to the child’s upbringing or will have an adverse effect on his mental and physical development,
- If the mother is not psychologically sound, the child is given to the father.
- If the mother is convicted of a crime, custody of the child is transferred to the father.
Although the above-mentioned points are only a few of those used in court, the court granted custody. This is not exhaustive and can vary depending on the facts and circumstances of each case.
Supreme court judgement where child custody was granted to the father
Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari on 6 may, 2019
Zelam was the wife of Tejaswini Gaud and their marriage was solemnized in the year 2006. During the fifth month of her pregnancy, she was diagnosed with breast cancer in the year 2017, while they were blessed with a baby girl named Shikha. During the time when Zelam was undergoing treatment, the child Shikha lived with her father Tejaswini. After two months Tejaswini collapsed with convulsions due to illness and was later diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis. While he was kept at ventilator, sisters of deceased Zelam, brother of Zelam and one of the sister’s husband took care of Shikha. Tejaswini went for his treatment for almost a year, while his wife and child stayed at the residence of the above-mentioned relatives. During this period Zelam underwent mastectomy surgery, and later relapsed into cancer and decided to get treated for the same. She shifted to her brother’s house in Pune along with her daughter Shikha. Zalem passed away in October’ 2018.
After recovering from his illness, Tejaswini went to Pune to seek custody of his child, but they refused to handover the custody, he was constrained to file a writ petition seeking custody of his child, because Shikha went to the custody of Zalem’s relatives because of unavoidable conditions. Under section 6 of the Act, the father is the natural Guardian and he is entitled to the custody of the child and thus the relatives had no right to the custody of the child, and the child being a minor aged 1 ½ years cannot express its intelligent preferences. In determining the question as to who should be given custody of a minor child, the paramount consideration is the child’s welfare and not rights of the parents under a statue for the time being in force.
https://main.sci.gov.in/supremecourt/2019/6009/6009_2019_Judgement_06-May-2019.pdf