Custody is included within the notion of Guardianship, and it happens as a result of the parents’ divorce. Divorce may be harmful to both parents and children, and children are often subjected to significant emotional trauma as a result of their parents’ divorce. The question of custody comes after the divorce is finalised, and it is a pertinent subject that must be resolved by the court. Custody refers to the privilege granted by the court to either of the parents in favour of the kid who is under the age of eighteen. The parent who is given the custodial right has to look after the financial, emotional, medical, and all other necessary needs of the child.
Types of Custody in India
The kid will be under the guardianship of one of the parents in this custody, and the other parent will have the ability to visit the child from time to time. This is the most common type of custody, and it ensures that the kid receives all of the advantages of the family as well as the finest possible upbringing. Both parents’ love and devotion are intended for the kid.
In this custody, both parents are allowed the right to keep their kid with them, but only in turn. Joint custody is one of the greatest alternatives to the post-divorce custody struggle. No parent feels deprived under this custody arrangement since both parents have the opportunity to be with the kid and have a major role in their upbringing. The major advantage of this custody arrangement is that the kid receives the love, care, and attention of both parents equally, and both parents have the right to make decisions about the child’s future.
In this custody, neither of the parents gets the custodial right. This is because the court believes that both parents are incapable of parenting a child and that granting the child’s rights to any of them would be detrimental to the child. In such cases, a third party is appointed and the custody of the child is given in his favor for the benefit of the child. This is mainly done in cases when both the parents re-marry after divorce then the custody of the child is given to grandparents.
In this case, the custody of the child is given to either mother or father and the other parent has no right over the child. This is usually done because of the abusive or immoral nature of the non-custodial parent. Under such cases, the court passes an order that non-custodian parents will not be granted the right to visit or meet the child once in a while.
Custody of Children to Grandparents
In some circumstances, the court may give grandparents custody of the kid. When giving custody of a child, the court takes various factors into account. The minor’s well-being takes precedence over a specific party’s legal rights. If the youngster is mature enough to choose who he wants to live with, the court will take it into account while deciding on final custody. The court must consider the following Acid test while determining custodial rights:
- Education, health, and maintenance of the child are the relevant factors while determining the custody of the child.
- The priority of the custody of the child is given to their biological parents. However, if they do not promote the welfare of the child, custody can be granted to the grandparents.
- Financial stability cannot be the sole ground for deciding the custody of the child, the welfare of the child is of paramount consideration.
- The child’s moral and ethical well-being, as well as its bodily well-being, must be considered by the Court.
- Love of the parents towards their children cannot be a ground for deciding the custody in their favor.
- The physical and mental conditions of the parents along with their professional life are taken into consideration while deciding the custody. In such cases in which both the parents are professionally working and are not able to look after the child properly, custody will be granted to the grandparents.
- The wish of the child with whom he/she wants to stay is of utmost importance while deciding the custody.
- The ‘character’ of the proposed guardian is one of the issues that must be examined by a court of law.
- When dealing with custody disputes, a court is not bound by legislation, rigorous standards of evidence or process, or precedents. When choosing a competent guardian for a minor, the most important factor should be the child’s welfare and well-being.
- Custody disputes cannot be determined only based on papers, oral evidence, or precedents; the human touch is the most important factor for the minor’s wellbeing, since the other materials may be generated by the parties themselves or on the advice of counsel to fit their needs.
In Jai Prakash Khadria v. Shyan Sunder Agarwalla and Anr, the appellant was the child’s maternal grandfather, while the respondent was the child’s paternal grandparents. Because the kid’s school was close to their house, the court gave paternal grandparents custody of the youngster. The paternal grandpa became overly close to the youngster and gave all of his property to him. The court also argued that because the maternal grandfather was living alone and there was no one at his house to care for the kid, custody would be given to the paternal grandparents.
Child custody is one of the most sensitive and difficult problems that arises following a parent’s divorce. Custody of the kid is always granted to the person considered by the court to be the best alternative for the child. The welfare of the children is the most important consideration when determining custody. Courts will award custody of the kid to the party who can demonstrate that the child’s best interests are served by them. In some instances, if the court deems it appropriate, custody of the children might be assigned to grandparents.