Who gets the child's custody in a divorce? | Economic Times

One of the ugliest fallouts of a divorce is the trauma that the children are forced to go through. Child custody often proves to be a major bone of contention between the sparring couple. In case of a minor child, both the parents have an equal right over the child after divorce. If there is no mutual consent, the family courts decide who gets to keep the child and take major life decisions for him or her. How does the court take this decision and who, if at all, gets the preference in keeping the child?1. Factors considered by courtThe family court takes a decision on child custody as per the Guardians and Wards Act 1890, but these can often be in conflict with the personal laws. Hence, to maintain a balance, the court always puts the best interests and welfare of the child above those of the parents. This implies that the child should be with the parent who can guarantee safe and ethical upbringing, provide good education and ensure his financial interests.The Hindu laws regarding the guardianship are covered under the Hindu Minority and Guardianship Act 1956, which is similar to the Guardians and Wards Act 1890. Here, typically, the custody of a child who is below five years old is given to the mother, while a child above nine years of age can be consulted by the court regarding his preference for the parent he wants to stay with. For older boys, typically fathers are made the custodians and for older girls, mothers are chosen custodians by the court though there is no law mandating this.2. Types of child custodiesAs per law, there are various types of custodies granted to parents, which can include the following:a) Physical custody: This implies that one of the parents acts as a primary guardian and the child stays with him, while the other parent is granted visitation rights and can meet and spend time with the child.b) Joint custody: Here both the parents get the child’s custody in rotation. This implies that the child stays with each parent for a fixed duration.c) Legal custody: This means that one or both the parents get the right to take all major life decisions for the child, including those for his education, finances, religious preferences or medical needs, till he turns 18.d) Sole custody: If one parent is considered unfit to take care of the child, the other parent is given full custody of the child.a) Third-party custody: If both the parents are either deceased, or are unfit to take care of the child, or are abusive, then the court provides custody of the child to a third party such as grandparents or a relative.3. Custody in Muslim lawAs per Hizanat under the Muslim personal law, the child’s custody rights rest solely with the mother till the child is seven years of age, except if she is considered unfit or incapable of raising the child.4. Custody in Christian lawDue to the absence of child custody rights under the Christian law, these are governed by Section 41 of the Indian Divorce Act 1869. This states that the court has the right to decide the custodianship of the child by keeping the child’s welfare at heart. The court can even deny the custodianship to either parent if it does not consider them fit to take care of and raise the child.If you have a wealth whine, write to us...All of us have been in a financial dilemma when it comes to relationships. How do you say no to a friend who wants you to invest in his new business venture? Should you take a loan from your married brother? Are you concerned about your wife’s impulse buying? If you have any such concerns that are hard to resolve, write in to us at etwealth@timesgroup.com with ‘Wealth Whines’ as the subject.DisclaimerThe advice in this column is not from a licensed healthcare professional and should not be construed as psychological counselling, therapy or medical advice. ET Wealth and the writer will not be responsible for the outcome of the suggestions made in the column.