Is a child’s wish & will important in custody?


Child custody disputes can be delicate, especially when both parents present rational defenses for their positions. Typically, the court decides what is best for the child by taking that into account. It implies that the young children's preferences, or the people they truly want to stay with, come first. The court must take into account several considerations before deciding who will get custody of the child.

Principle of Child Welfare

The child welfare principle focuses on two main objectives:

It prioritizes the best interests of the kid when addressing custody-related concerns, ensuring the overall growth and development of the child.

In Vivek v. Romani Singh, the court found that the child-centric human rights law has evolved and that the emphasis on the overall development of children, who are the future of the country, is in the public interest when taking into account the children's optimal growth.

Section 13 of the Hindu Minorities and Guardianship Act, 1956, deals with the concept of child welfare regarding the custody of a child or the appointment of a guardian to look after the child and property. The welfare and interests of the kid must be taken into account while making such a decision.

The court ruled in Gaurav Nagpal v. Sumedha that the welfare of children comes first and that everything else is secondary. The Court ruled that a child's wishes, happiness, educational needs, health, and physical comfort should all be taken into account.

The child's well-being is the most important factor, the court ruled in the case of Rosy Jacob v. Jacob A. Chakramakkal.

Considerations for granting child custody

  • The court takes the following factors into account when granting child custody to a parent.
  • The primary consideration when deciding who should have custody of a child is the child's age. A mother is typically chosen as the guardian if the child is young. There isn't a written law that the mother should only receive custody if the child is a minor, though.
  • The court will take note of how the young children get along with each parent.
  • Each parent's physical and emotional health will be taken into account during the case time.
  • The court wants to know the financial situation of both parents as well as their intentions to keep the child(ren) with them or not at the time of the case. It implies that the court's ruling will take into account the wishes of both parents.
  • The court will be interested in knowing if each parent fosters or supports the relationship between the kids and the other parent.
  • If either parent has ever neglected, abused, or physically violent their child in the past.
  • The gender of a kid is also taken into account by the court, often with a girl child, the court considers the necessity for a female in the home to care for the child's developing needs.
  • Most crucially, a person with a criminal or civil record is not granted guardianship. The person assuming custody of a kid should be clear of all charges and convictions.

Important factors in child custody

In addition, a few other things are taken into account when deciding who gets custody of the kids.

The parents' aspirations

After a divorce, the court will inquire as to whether the parent wants sole custody of the minor children. When both parents are vying for custody, the decision-making process may be challenging for the court, but it will be simple if just one parent is granted complete custody. In this instance, the court will base its decision solely on the parents' preferences.

The child’s aspirations

Although the court does not place a lot of pressure on young children, they always wish to give priority to the child's preferences and living arrangements. However, the court will establish a different accommodation for the young children if it determines that the youngsters have chosen a parent who has a significant risk of spoiling them. In other words, the court will take into account the children's age and wishes while making any decisions.

The Relationship between children and each parent

The court will first consider the children's relationships with both parents. If the court determines that the young children are better off living with one parent and having a close relationship with that parent, the court will grant that parent full custody.

The other parent will also be required to pay child support if the court decides to grant them visitation rather than custody. The bond between the child and both parents will be given importance by the court in this manner.

Mental and Health conditions of each parent

The court will make a different decision if one parent has a physical disability and cannot care for the child. The court's rulings will take into account the impaired parent, shared custody, visitation, and child support. If one parent has a mental illness, the court will award the other parent full custody while taking child support into account.

The necessary adjustment

The court will determine what the child wants, who they feel safe living with after their parent's divorce, and how much they need to shift in their lives. This adjustment process will serve as the foundation for the court's decision.

Complaints or negligence

The court will re-evaluate the child custody arrangement if it detects any negligence on the part of either parent. The court will choose how to set up custody if any of the allegations made by the child or any of the parents are confirmed.

The Guardian & Wards Act of 1890, Section 17(3)

17(3), it is crucial to consider the child's preferences and inclinations when deciding on the custody of the minor child. The court may not appoint or declare anyone to be a guardian against their will, according to Section 17(5).

In the case of Smriti Madan Kansagra v. Perry Kansagra (Civil Appeal No. 3559/2020), the Hon'ble Supreme Court used Section 17(3) as its guide, noting that when deciding a child custody dispute, the court should take the minor child's preferences into account if he or she is old enough to make a thoughtful and intelligent decision.

The case was determined by the bench of honorable Justices UU Lalit, Indu Malhotra, and Hemant Gupta. In this case, the father, who was based in Kenya, was given custody of the child.

The father ultimately won custody of his son Aditya after a protracted legal battle that spanned more than 10 years and involved the family court, the high court, and the Honourable Supreme Court.

It was fascinating to see that the judge frequently personally interacted with the youngster throughout the court procedures to learn about his preferences and inclinations. They also made an effort to comprehend the child's decision regarding his family.

The supreme court cited section 17(3) in its ruling and adhered to the same concept in this instance, which states that the child's best interests and well-being must come first.

The Hon'ble Supreme Court found that the child showed a stronger preference for his father while taking into account the findings of the Family Court, the High Court, and the Report of the Counsellor. 

The court concluded that transferring custody to the child's father would be in the child's best interests because failing to consider the child's preferences could have a negative psychological impact on the child.


It is difficult to foretell how the case will be handled and how the custody arrangement will go. Most of the time, the court prefers to make decisions jointly on behalf of both parents. The child will be granted permission by the court so that they can live in a safe environment.