This blog is written by Deepika Chaneja, a Fifth-year law student of H.P.College Of Law, H.P.U

INTRODUCTION

Child custody is the authority of the child given to a parent who can provide good care and protection to that child. It is to provide a safeguard for a child’s future. The child custody process happens on divorce, separation, annulment, or death of any parent, to decide who will become the legal guardian of the child. This process of child custody is a very important step to ensure the well-being and stability of that child’s life.

JURISDICTION

The appeal or complaint related to child custody must be filed in the court having jurisdiction over that matter or in the court where the trial of divorce or separation of parents is going on. The case is to be filed in the nearest family court. The Hindu Minority and Guardianship Act,1956, section 26 states that the custody of a child below 5 years goes to its mother. Mother’s care and presence is very essential for a child of that tender age and no one should separate them unless there are other crucial circumstantial issues or barriers to such. Other acts that protect the rights of a child are the Guardian and Wards Act, of 1890, the Hindu Marriage Act, of 1955, Muslim personal law, etc;

CHALLENGES OF CHILD CUSTODY

· The process of giving child custody to a parent is very lengthy just like any other case in the court. Things may even take years a process. This lengthy process of trials in the court can be burdening on both the parents and the kid. There must be some measures to speed up the child custody process in India.

· For granting a child custody to any one of the parents it requires a lot of background research of them, to decide which parent is most suitable for that child’s care and overall development.

· In the legal process, the laws and rules can be challenging and confusing sometimes. The custody must be provided with keeping all the acts and laws in consideration.

IMPACT ON CHILDREN

There can be a lot of impact on a child during the process of separation of parents and child custody. Some of them are:-

i. Emotional imbalance

A child may go through emotional ups and downs during such a time. Both mother and father are important to a child and the separation or burden of choosing one of them can be very disturbing to that child’s mental health.

ii. Trust issues

A child might even gain trust issues towards parents and other relatives. It would become hard for the kid to trust anyone and everyone.

iii. Social anxiety

The kid may feel anxious in crowded and big gatherings. Would feel difficult to open up in public places. Might create stage fear. Social anxiety will make them have poor communication skills and will experience a hard time putting up conversations with people.

iv. Separation anxiety

The divorce or separation of parents can cause a child to develop separation anxiety.

v. Age factor

The age of a child can play a big factor in the impact of child custody. Small kids suffer a lot of difficulty in coping with these situations and carry trauma for life.

STRATEGIES FOR CO-PARENTING

There are two major kinds of child custody provided.

· Physical custody

This custody gives the rights of day-to-day life decisions regarding the child to a parent and visitation rights to other parents. It's where the child resides primarily with one parent.

· Legal custody

Legal custody gives the authority to parents to make major decisions for the child like education, medical issues, etc. Legal custody can be sole legal custody or joint legal custody.

· Joint custody

In this type of custody both the parents have physical custody and legal custody. This way it promotes a co-parenting strategy among parents after or during the separation of parents. Such custody emphasizes promoting Cooperation, shared decision-making, and equitable involvement of both parents.

In India usually they grant physical custody to one parent and legal custody to both. This way of distribution of custody promotes co-parenting. This arrangement makes both parents equally take responsibility for their children. Even a child would feel stronger mentally as co-parenting is beneficial for a child.

CONCLUSION

Divorce or separation in marriage can make or break the future of both the parents and kids. There is a need for proper proceedings regarding child custody. Also, the court must work on speedy trials regarding child custody cases. The decision as to who will do the upbringing of the child after separation creates a profound impact on the children. The decision regarding child custody is taken by considering personal laws and with Guardians and Wars Acts, of 1890. Although parents and child both are given preferences in the end it's the court who makes the final decisions regarding child custody.

REFERENCE

1. Vidhikarya, “Child custody laws in India”, Legal service India (https://www.legalserviceindia.com/legal/article-710-child-custody-laws-in-india.html) 5 September 2024.

2. Sahodar, “Child custody and challenges in India”(2024), Sahodar (https://sahodar.in/child-custody-and-challenges-in-india/) 5 September 2024.

3. “child custody laws under Hindu law,” Pink legal (https://pinklegal.in/topics/marriage-and-divorce/hindu-custody.html) 5 September 2024.

4. “Child custody,” Wikipedia (https://en.m.wikipedia.org/wiki/Child_custody) 5 September 2024.

5. Guardians and Wards Act, 1890 (https://www.indiacode.nic.in/handle/123456789/2318?view_type=browse) 5 September 2024.

6. Law4u team, “What type of custody arrangements are recognized under Indian law”, law4u (https://law4u.in/answer/5257/what-types-of-custody-arrangements-are-recognized-under-indian-law) 5 September 2024.