What are the Factors determining Child Custody in India?

Divorce and Child Custody

When the parents decided to proceed with divorce proceedings, one of the main issues dealt by the Court is the Child custody.  Orders on child custody are pronounced along with the main issue of divorce.  Child custody be ordered to any one of the parents of the child.  Therefore, Court always gives first preference to the welfare of the child and workout for the best interests of the child.  The main factors that are taken into account by the court in granting the child custody are:

  1. Age, sex and religion of the minor (here personal law of the father will be considered). In general, irrespective of the personal law, younger children of below 5 years old, custody is granted to mother’s custody;
  2. Court then considers the earning capacity of parent or the proposed guardian.
  3. Character, exiting and present relationship of the parents/ guardian also considered for the sake the future of the minor child.
  4. Court also gives preference to the wishes of any deceased parent if there is any specified Will with respect to the custody of child.
  5. Courts enquire whether the any of the parent demands child custody in order to take control of the properties of the minor child.
  6. The minor’s preference will be given when the child attains age of about 9-year-old provided if minor child found reasonably intelligent to think over the same.
  7. If the parties to the divorce has more than one child, court would always try to keep siblings united, and as far as possible try to give all children’s custody to any one of the parents.
  8. The Court look into different aspects such as child’s future, prosperity, good environment for their upbringing, and by enquiring both parents, make out which parent could give good education to the child or children and given custody to the most deserved parent.
  9. Usually father is given the custody of older children above 5 years because maintenance of children is the responsibility of a father, whether custody granted to him or not.  The child should not suffer because of the reverse procedure of mother bearing such responsibility.  In this way, Court always wants to ensure the normal psychological development of the child.

By Anitha Gutti