Temporary and permanent child custody

The custody procedure starts when you submit a claim in family court at a nearby district court. In areas wherein no designated family court is present, file it in the neighborhood district court. Pleas for interim custody are typically heard by the court faster than requests for permanent custody. The judge will determine both physical and legal custody in any custody dispute.

Legal Custody: 

Making decisions for child welfare, including their education, religion, and health care falls under the legal custody category. When the parents have joint legal custody, they frequently share the authority to make these choices.

Physical Custody: 

The actual schedule of the time the children will spend with each parent is known as physical custody. Although it is common for parents to have joint physical custody, it is possible for one parent to have sole physical custody and the other to have regular visitation. Sometimes, a parent will only get unsupervised time with their child.

Temporary Custody: 

Temporary custody refers to a provisional legal arrangement granting one party temporary care and control over a child, typically during legal proceedings related to custody or guardianship. In a hearing for temporary custody, the party who filed first will present their case. This evidence can contain witness statements and other exhibits. However, the court frequently condenses the testimony during a temporary hearing. There may only be a few witnesses and a limited number of exhibits presented by each party during the hearing and in this context, Section 12 of the Guardians and Wards Act, 1890 will be a key factor considered by the court in determining the temporary custody arrangement.

Permanent Custody:

According to family law, Permanent custody of a child in India refers to a long-term legal and physical arrangement established by a court, determining which parent or guardian has the authority and responsibility for the child's upbringing, care, and decision-making.

The custody status can change at any point in time before a child turns 18, a maturity age. It may take longer to arrange and go through a more drawn-out legal process for a permanent custody hearing. You will spend a lot of time working with your attorney to get ready witnesses and evidence for the permanent custody hearing.

At the hearing, the court will want to hear testimony and view evidence on the children, your house, your family, the individuals who are important in your children's life, their school, activities, etc. During the hearing, the judge will frequently quiz you and your witnesses to ascertain what is best for the children. 

After further consideration of the material and taking it under advisement, the judge may render a written decision. A parent must demonstrate a significant change in the child's circumstances since the judge made the order to have a permanent custody order modified.

What is the difference between temporary and permanent child custody?

The differences between temporary and permanent child custody are apparent at first glance. The first is short-term, while the other is a long-term partnership. But that can be deceptive. Temporary custody in family court rarely means what the word suggests. In custody cases, attorneys are aware that temporary is frequently actually permanent.

The Importance of Temporary Child Custody:

It is typical for the court to grant one parent temporary custody of the kids during a legal separation before the divorce is finalized. It sounds simple: On a seemingly limited basis, one parent assumes legal and physical custody of the children. The other parent is entitled to visitation. However, gaining temporary custody provides the custodial parent a head-start in securing long-term parental rights.

The court takes the child's best interests into account while deciding who gets permanent custody of the child. The court will consider the case's facts to reach that conclusion. A child is typically best served by staying in a pleasant, safe, and well-cared-for setting, the court will decide.

You might be interested in: Child Custody in India : Types, Laws governing child custody

Obtaining Long-Term Custody:

If a parent is granted temporary possession of the kid, that parent will have the chance to prove that the child is flourishing in their custody during the ultimate custody court. If that is effective, the other parent will have a much harder time persuading the court to rule differently. Courts have occasionally said that temporary custody has no bearing on long-term custody. In fact, given that they presume everything is okay in the child's current surroundings, most judges are reluctant to disrupt it.

Custody Rights and Responsibilities:

The parent who is granted temporary custody must abide by the court's rules on the other parent's visitation rights. By doing so, the custodial parent demonstrates to the court that they are amenable and willing to allow the other parent to participate in the child's life. However, it's crucial to document all instances if the non-custodial parent is being stopped from exercising his or her visitation rights to eventually urge a change in custody.

De Facto Custody:

Avoid relocating and leaving your kids with the other parent if you're trying to get custody. De facto custody is established in this situation.

De facto custody is a straightforward precursor to temporary custody, which then results in permanent custody. A temporary custody hearing is typically the only opportunity to contest de facto custody before the permanent custody hearing if the other parent has it. 

If the non-custodial parent waits until the permanent custody hearing to challenge the de facto custody, the court is frequently hesitant to change child custody. If you want to be granted custody of your child or children, you must comprehend temporary and permanent custody as well as the fine line that divides them. Speak to a skilled child custody lawyer for specific details at Rest The Case.

Enforcement and Modifications:

The other parent may file a petition to the court for enforcement if a parent disobeys the terms of a temporary or permanent order. Either form of custody order is typically more challenging to modify or change. Because temporary orders are by their very nature temporary, judges are reluctant to alter them. If the judge wants to modify a temporary order's terms, he will typically do so when he issues a permanent order to replace it. To modify a permanent custody order, a parent must return to court and demonstrate that there has been a change in circumstances that makes it inappropriate for the children to remain in the custodial parent's house.

Temporary Custody Orders:

Implementing a plan that parents agreed upon:

The parents come to an agreement, which is submitted to the court to become an order and this is the most frequent method. Once an agreement is formally codified as a custody order, any breach of the order has the same legal consequences as any other court order.

A court-ordered Investigation:

Investigations can be carried out by various people, including a designated child's attorney (also known as "minor's counsel"), a private evaluator of child custody, a law enforcement agency, or an internal investigation by child protective services. These options may be employed if further information is required before the court may decide whether to issue temporary orders. Investigations are typically sparked by instances (or accusations) of abuse, neglect, or substance misuse.

Court Hearing:

The court could issue orders after holding a hearing to hear the parents' and any other witnesses' statements. Hearings on temporary orders are only appropriate in more serious custody disputes if there is a significant disparity in the legal and objective positions of the two parents. Once a temporary custody and visitation order has been made by the court, it can be finalized in one of two ways: either the court records the order (in a "minute order," where the court clerk writes down all of the orders), or one of the parents' attorneys is asked to draught the formal court order and submit it for the court's approval.

Permanent Custody Orders

The final child custody order is comparable to the above-discussed temporary orders. Similar to temporary orders, final child custody decisions are typically made after a formal court hearing or with the parent's consent. The court may hire its investigators or experts to make a recommendation following an investigation, much as it may do for a temporary order.

A permanent order will remain in place unless there is a dramatic change in circumstances, which is the key distinction between a temporary and permanent order. The original permanent order would need to be modified by the court if there was a serious change in the situation.

Well, what is an example of a shift in circumstances, is the inevitable follow-up question. No set of criteria must be met for the first order to be immediately modified under appropriate conditions. The most important consideration when it comes to children in the divorce process is their best interests, as you have surely realized from reading our blog. The court, judges, and family law attorneys will support any circumstance where their welfare is assured or offers the potential benefit. The belief that the change will be in the child's best interests must therefore be supported by sufficient evidence for a change in circumstances to justify a change in custody.

The parent who asks for the modification is responsible for providing evidence of the facts. It can be a tough challenge, thus it is always advised in this specific process to seek the advice of an experienced family law attorney. Get in touch with the best Child Custody lawyer in your area in just one click.

Frequently Asked Questions?

Q. How long does permanent custody last?

Permanent child custody in India lasts until the child reaches the age of majority, which is generally 18 years, or until the court orders a modification. However, it's essential to note that circumstances may arise that lead to a modification of custody orders before the child turns 18.

Q. Can permanent custody be changed?

Yes, Courts always prioritize the best interests of the child, and if there are significant changes in the situation that warrant a review of custody arrangements, the court has the authority to make adjustments accordingly.

Q. Do temporary custody order becomes permanent?

Yes, a temporary custody order can become permanent depending on the circumstances of the case and the findings of the court. This includes the child's best interests, the capabilities of each parent or guardian, and any other relevant considerations.

About The Author:

Adv. Rohit Sharma is an accomplished independent legal practitioner with extensive experience providing expert legal advice and representation across various areas. His practice encompasses Consumer Law, Copyright Law, Criminal Defense, Entertainment Law, Family Law, Labor and Employment Law, Property Law, and Matrimonial Disputes. Adv. Rohit brings a wealth of expertise in representing his clients before the Supreme Court of India and High Courts. He is also committed to pro-bono work, legal advisory, and start-up consultancy, showcasing his dedication to individual and corporate legal needs.