Can Grandparents Get Custody Of Their Grandchildren?

In India, the image of family is tied to extended family bonds, and the grandparents' role remains crucial in every stage of a child's life. However, what happens when circumstances change, when the child’s parents separate, become unfit to take care of the child, or if they both die? Are grandparents legally allowed to get custody of their grandchildren?

In this blog, we will discuss:

• The rights of grandparents for child custody and the relevant laws.
• Key judicial precedents that shape the issue of grandparental custody rights.
• Factors that the courts look into while deciding custody of a child.
• The legal route by which grandparents can initiate a proceeding for custody.

By the end of this blog, you will have a clear understanding of when and how grandparents can seek custody and their legal standing in such cases.

Do Grandparents Have Legal Rights To Custody In India?

Yes, grandparents have a chance at being granted custody, though such is only possible in exceptional circumstances as, in India custody is generally granted to the biological parents of the child as they are considered the natural guardians as per the Hindu Minority and Guardianship Act, of 1956 and the Guardians and Wards Act, of 1890.

The fundamental objective of custody decisions is to consider the welfare and well-being of the child. The child’s welfare was of paramount consideration in the custody matter of Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court emphatically stated that the welfare of the child overrides all other considerations and even the wishes of biological parents.

Legal Framework For Grandparents Seeking Custody In India

Indian laws on child custody focus on several statutes, such as the following:

Guardians And Wards Act, 1890

According to the Guardians and Wards Act, of 1890, any person may apply for custody over a minor, including grandparents, on the ground that it will be in the best interest of the child.

Provisions Essential For Grandparents Seeking Custody:

Section 7: Under this section, courts have the power to appoint a guardian, considering the best interest and welfare of the child. Grandparents can apply for guardianship if they can prove that they are well-suited to maintain the best interests and welfare of the child.

Section 17: Under this section, there is a list of factors influencing the court’s decision, such as age, gender, and preference of the child, as well as there is the mention of checking the character and capacity of the guardian before deciding about the child’s custody.

Hindu Minority And Guardianship Act, 1956

Under Section 6 of the Hindu Minority and Guardianship Act, of 1956, the father is considered the natural guardian of a minor, followed by the mother but in certain cases such as when parents may be deceased or deemed unfit, courts can appoint someone else, such as grandparents as guardians of the child.

Provision Essential For Grandparents Seeking Custody:

Section 13 emphasizes that child welfare must be the top priority at the time of deciding any custody case. For this reason, while grandparents may not be the biological guardians, they may petition for custody by proving that they are looking after the child's best interest.

Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, of 2015 applies in cases when there is abandonment, neglect, or abuse by parent(s). The grandparents can file for custody under this act if it is found that the child needs care and protection.

Personal Laws:

Muslim Law

Under Islamic law, the right of custody (hizanat) belongs to the mother and in her absence, the grandparents can claim the custody.

Christian And Parsi Law

Custody matters are resolved under the Guardians and Wards Act, of 1890, as there are no specific statutes under the personal laws.

When Can Grandparents Seek Custody?

Under several circumstances under the Guardians and Wards Act, of 1890, the grandparents may be eligible to request custody when:

Death Of Both Parents

In case both parents are dead, the grandparents then can apply for custody of the child under their guardianship according to the Guardians and Wards Act.

Parental Incapacity

In case the court is satisfied that the parents cannot or will not provide appropriate care, security, and the upbringing of the child, the grandparents may be suggested for custody.

In cases where parents are unfit due to mental illness, drug abuse, imprisonment, or other conditions affecting their ability to care for the child, grandparents can apply for custody.

Child’s Welfare

Since the interests of the child are paramount in all custody matters, this may include the child's wishes, if he is old enough to express them, the relationship with his grandparents, and the environment where he is likely to grow considered by the courts.

What Does The Law Say?

Indian law recognizes that parents are a child's natural guardians, nevertheless, grandparents can be considered in certain cases to be legal guardians of the child. There are various legal provisions providing grounds for their custodial rights:

• Hindu Minority and Guardianship Act, 1956: If both parents are either dead or unfit to be the child's guardians, then the Court can appoint either paternal or maternal grandparents under Section 6 as guardians whilst taking into consideration the interests of the child.
• Guardians and Wards Act, 1890: Grandparents may qualify as "fit persons" for guardianship, where the custody of parents would work against the child's best interest.
• Muslim Law: In the absence of parents, the child's paternal grandmother may act as a de facto guardian concerning the care and welfare of the child.

Courts take into consideration several factors, such as the relevant personal laws involved, the emotional bonding between the child, and most significantly, the welfare of the child before awarding custody. As in the case of Ms Githa Hariharan & Anr vs Reserve Bank Of India & Anr on 17 February 1999, it was emphasized that the best interest of the child is always paramount, irrespective of all other considerations, including parental preference.

Factors Courts Consider When Granting Custody To Grandparents

Best Interests Of The Child

The best interests of the child are prioritized by the court, considering whatever pertains to the child's well-being in terms of emotions, physical health, psychological capacity, and education.

Financial Stability

Grandparents must prove financial capacity suitable to nurturing the child's education and health care and the daily upkeep of the child.

Living Conditions

The court sees whether the home environment presents a safe, stable, and helpful in the child's growth and development. This may include looking at the housing, security, and overall capacity of caregiving.

Child’s Preference

The child's preference in custody matters may be taken into consideration by the court if the child has reached a reasonable age and has reached maturity.

Existing Relationship

A strong, positive bond with the grandparents and weak, harmful, or strained relationships with the parents may influence the custody decision.

Parental Fitness:

If the parents are deemed unfit due to substance abuse, mental illness, neglect, or abuse, the court may favour granting custody to the grandparents.

Emotional And Psychological Impact:

The court considers whether separating the child from their grandparents or moving them to a new environment would negatively affect their emotional and psychological stability.

Process To Apply For Custody

Step-By-Step Guide To Seeking Custody

Filing A Petition:

The grandparents must file the custody petition under the Guardians and Wards Act, of 1890, before the concerned family or district court, stating their reasons for seeking custody and supported by documents like:

• relationship proof,
• financial stability,
• parental negligence evidence, or incapacity.

Notice To Parents Or Legal Guardians:

If the parents are alive, a notice will be issued to them and given a chance to respond. If they object to the petition they must provide grounds for opposing the grant of custody to the grandparents.

Court Investigation:

The court may assign a Child Welfare Committee (CWC) or a social worker to evaluate the child's welfare, undertake visits to the home, and judge the child's relationship with the grandparents.

Hearing And Evidence Presentation:

Both sides provide arguments and evidence, such as financial documents, medical reports, and witness testimony. The child's choice may be important if the child is of a mature age.

Court Decision:

After considering all factors, the court issues a custody order based on the child's best interest. Full custody may be granted, shared custody may be given, or visitation rights may be given based on the nature of the case.

Documentation And Evidence Required

• Birth certificate of the child
• Death certificate of parents (if applicable)
• Proof of financial stability (income statements, bank records)
• Medical reports (if claiming parental incapacity)
• Child Welfare Committee reports (if relevant)

Can Grandparents Get Visitation Rights If Not Custody?

Even if grandparents are not granted custody, they can still apply for visitation rights to maintain a meaningful relationship with their grandchild. Courts understand the psychological connection between grandparents and grandchildren, grandparents may be granted regular visitation under either Section 26 of the Hindu Marriage Act,1955, or Section 17 of the Guardians and Wards Act,1890.

Visitation Can Be Granted If:

• There is a bond between the grandparents and the child;
• The parents are denying reasonable access with no valid reason, and
• The court determines that visitation is beneficial to the emotional and psychological development of the child according to what has been presented.

Now, depending on the situation courts may allow scheduled visits, weekend stays, or virtual communication to ensure the grandparent-grandchild relationship is preserved.

Real-Life Judgements And Case Examples

Gaurav Nagpal v. Sumedha Nagpal (2009)

In Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court emphasized that the welfare of the child is to be the paramount consideration in matters of custody of children under the Guardians and Wards Act, 1890. Rights of the parents, according to the Court, must yield to the well-being of the child in respect of custody orders. The Court decreed that custody cannot be decided on the grounds of mere financial stability or legal rights: emotional well-being, physical care, and psychological development are paramount. The ruling laid down that courts have to evaluate every case based on the best interest of the child to provide an environment conducive to his or her growth and stability.

Ms Githa Hariharan & Anr vs Reserve Bank Of India & Anr on 17 February 1999

The Supreme Court overruled Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which stated the father as the natural guardian, creating gender bias. The Court clarified that the term "after" is to be understood not only as after death but even in cases when he is absent or unwilling. They also affirmed equal rights under Articles 14 and 15 of the Constitution, recognizing that both parents have equal rights in guardianship. This judgment marked a significant step in ensuring equal parental rights for mothers in India.

Conclusion

In India, parents are natural guardians of the child; if by chance the welfare of the child is gravely at risk, of the exceptions, grandparents may claim custody, considering other things, the courts act in the best interests of the children taking into consideration emotional, financial, and developmental contexts in making a final decision. In the case of no custody, visitation rights can be availed by grandparents. Legal verses make allowance for recognizing grandparents in the role of stabilizing and caring for children and considering them into the country's legal frameworks.

FAQs

Q1. Can grandparents get custody if the parents are divorced?

Yes, the court may allow the grandparents to have custody if it is convinced that neither parent is fit to take care of the child or that it would be in the best interest of the child to live with the grandparents.

Q2. Can step-grandparents apply for custody of a child?

Step-grandparents can try to approach the court for custody of a child, but there should be a strong case proving that such an arrangement is in the child's best interest.

Q3. What happens if the custodial grandparent passes away?

The court will decide who takes over the custody based on the child's welfare and the best interest of the child, often considering close relatives or appointing a legal guardian.

Q4. Can maternal grandparents claim custody if the father is alive?

Yes, maternal grandparents can claim custody in case the father is an unfit parent or indifferent, abusive, or not providing suitable care to the child.

Q5. Can paternal grandparents claim custody if the mother has custody?

Yes, grandfathers can get into custody if they can show the inability of the mother to properly care for the child.

Q6. Can a child decide if they want to stay with their grandparents?

Yes, the preference of a mature child (above 9-12 years) may be considered by the court for custody.

Q7. What is the difference between guardianship and custody for grandparents?