In a majority of divorce cases, child custody is settledbetween parents themselves, without the need to go to court. However, in a small number of cases whereparents are unable to settle the issue between themselves, it is the court thatdecides on the custody issue.
Most often bothparents share the custody of the child. In reality however the actual physical custody of the child goes to onlyone parent. Physical custody means that one parent is held responsible for thechild’s basic and daily needs like housing, education and food. The custody ofa small child is generally given to the mother. The custody of older boys isgenerally given to the father, and of older girls to the mother. While settling a custody battle betweenestranged spouses, the decision of the court is generally based on the bestinterest of the child. Custody in India is not a hard and fast issue, andjudges decide on a case-to-case basis. It is not always necessary that if you are financially instable, or ifyou have personal problems, you will not be given custody of the children. The court will always keep in mind the mentalsatisfaction of the children and their best interests. After a divorce, the husband may be orderedto pay maintenance to the wife, which can also be used to bring up the child.
If you feel that you are capable of taking care of yourchild, then you must file an application. It is your right to get custody of your child. It is also advisable to meet a good lawyerand work on these aspects in advance. Ifone of the parents is given custody of the child, the other is grantedvisitation rights. That means thathe/she can meet the child with permission from the custodial parent. It is also possible to request the court toreconsider its decision after a period of time, especially if the children arenot happy.
The courts give their decision based on various aspects thatdeal with the welfare of the child. These factors include the character of the parent, economic conditionsof the parents, any specified ‘will’ of a deceased parent, the moralenvironment at home, age and sex of the child etc. Children’s preferences are generallyconsidered after 9 years of age.
The writer is a social scientist, a legalluminary on issues of women and children and human rights activist
