CHILD CUSTODY LAW & VISITATION RIGHTS
Child custody law and its genre visitation rights are germane in divorce cases. Child Custody is the most important and complex issue. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Law Relating to Child Custody in India
Law relating Child Custody can be traced in India under following :-
- Section 26 of the Hindu Marriage Act
- Section 21 of the Domestic Violence Act
- Section, 7, 12, 25 under the Guardian and Wards Act-1890
Generally speaking, Guardian and Wards Court has power to grant:
- Permanent Custody
- Interim Custody
- Visitation Right
Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favour of one spouse as against the other is WELAFRE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in Child Custody case while awarding the same are as under:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties
TYPES OF CHILD CUSTODY RELIEF
Child Custody relief in a contested divorce proceedings can be broadly categorised as under:
- Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no wayprejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.
- Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the properdevelopment of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the
- Permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.
A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.