The issue of child custody comes into question after the judicial separation or divorce of the child's parents. There are various laws governing the custody of the child. The court decides on whom the custody of the child will be vested, keeping the child's best interests in mind. The parent granted custodial rights is responsible for the child's welfare. The other parent (noncustodial parent) is provided with visitation rights if the courts deem fit.
Custody commonly means guardianship. The parent's legal right to look after their child in case of a divorce or judicial separation is known as custody. The court grants the parent custody and gives legal responsibility to raise the child (in case the child is less than 18 years of age).
The parent to whom custody is granted is responsible for the child's financial stability, well-being in terms of a healthy lifestyle, medical care, and emotional, physical, and mental growth. The court considers the child's best interests while deciding who will get custody. The parent who does not have custody has only the legal right to visit the child.
Types of Custody in India:
- Physical Custody: Physical custody means the child is under the parent's primary care and is responsible for meeting the child's emotional, medical, and educational requirements.
- Joint Custody: Parents share the decision-making rights of the child in case of joint custody.
- Special Guardianship: A guardian or other person has legal rights of custody and not the biological parents of the child themselves.
Visitation Rights of Father and Mother pre-divorce:
The court grants visitation rights to the parent of a minor who has not been granted custody given any reason. However, visitation rights are awarded, keeping the child's welfare in mind and considering the child's closeness with the noncustodial parent. In general, the father's visitation rights in India are more known, as the mother usually gets custody of the child. These rights can be granted to:
- Noncustodial parent of the minor, i.e., Father or Mother
- Grandparents of the minor.
Visitation Rights of Father and Mother post-divorce:
Visitation rights are granted through a court ruling addressing the current custody issue. To ensure the child's welfare, the court must guarantee that the child is in contact with both parents regularly for his proper welfare and growth. The court has the right to determine the time, manner, and place to enforce these rights, which the court asserts during the proceeding. It is pre-decided and has to be followed by the noncustodial parent. During the visits, the noncustodial parent oversees the child's well-being and security.
Further, the court also investigates various parameters while determining the visitation rights of a noncustodial parent, such as:
- Age of the Child
- Holidays like weekends, government holidays, etc.
- Distance between the house of the two parents.
In case of relocation of the custodial parent:
- The custodial parent must inform the court and the noncustodial parent by giving a notice stating the new address, contact number, reasons for relocating, and a proposal for a visitation schedule.
- The noncustodial parent has a right to oppose such relocation and can also file a petition for modification of custody.
Do both Parents Have Custody of a Minor Child After Divorce?
When a spouse, after divorce, gets Custody of their minor child together, then that Custody is known as joint Custody. The law has not dealt with joint Custody, but with changing times and challenging methods arising, joint Custody is being acknowledged by courts of law. This shift is one spouse saying against another, having absolute control of the child.
More info about visitation schedules:
Visitation plans are just as unique as the families applied; therefore can be put in any number of innovative ways to adjust a family's needs and to do the best for a child. Considering their likes and dislikes, a child's best interests situation plan usually has the following:
- Contact details for the parent who does not have custodial custody.
- Division of the holidays to celebrate with the child.
- Dividing the alternative years to celebrate a birthday.
- Week or week off meet with the child.
- Dividing weekend visitations, such as three-day weekends
- How to handle emergencies.
A minor child may live with one custodial parent for some time and with the non-custodial parent for another time under joint Custody. Yet, it must be mentioned that joint Custody is still not fed for by Indian Law.
Is a noncustodial parent allowed to see the child?
Yes, non-custodial parents are allowed to visit the child. There are some parties, other than the custodial parent, who may be given the right to see by the court such as:
- Grandparents of the child
- Biological parent (One who doesn't get the custody)
A court may give a visitation order in the rage of the noncustodial parent, selecting the visiting place and time. The immediate concern for granting visitation rights must be that it is given for the welfare of the child and that the noncustodial parent is very close to the child. Ensure your visitation rights are explicitly stated in a paper with no vague terms.
Custody and visitation mistakes one must avoid:
You must be cautious when child and custody cases are affected, as your findings can affect your parental rights later. You want to evade giving the court any cause to doubt your parenting powers, as they must assess the child’s best appeals when deciding child custody and visitation rights.
Careless and rash conduct could cause the court to ask about your parenting capacities. Avoid these actions, arguments with your partner, and illegal actions, as they may hurt your credibility.
Judges grow to obey de facto custody contracts, regarding character is in the child’s best interest. Thus, if you want custody of your child, you must avoid giving your spouse de facto control.
Also, avoid moving out, as this may result in your partner obtaining full charge. Such actions may result in criminal kidnapping charges being filed against you. It is good to file a motion for a temporary custody order in such cases. The exception to this law is if you are a victim of domestic violence. In such cases, you must leave with your children while conferring with a lawyer about your following best path of legal action.
NGOs fighting for visitation rights:
Many NGOs in India seek to help non-custodial parents and grandparents win visitation rights in court or outside court via mediation.
Child Rights Foundation:
The Child Rights foundation is situated in Mumbai, Maharashtra, and has worked a lot over the years to make a policy for those facing divorce cases. The High Court of:
- Himachal Pradesh
- Madhya Pradesh
Has assumed their child access and custody policies and directed family courts to direct them while having a divorce case.
Child Rights Initiative for Shared Parenting:
CRISP is a unique NGO with different “branches,” meaning units dealing with diverse parts of child custody. One of their branches deals with grandparents and the custody of children. CRISP has run a drive on the need for a law to protect visitation rights. Several senior citizens have come to the NGO complaining about being separated from their grandchildren after their child’s divorce. Hence, CRISP has requested visitation rights for grandparents and designed a law for visitation rights of grandparents.
Child custody leans on the personal laws in India and is read with The Guardians and Wards Act of 1890. The only thing is to let the control of a child seek welfare, and so, if needed, the other personal law rules and rituals can be set aside. Preferences are given to the parents and the child, but the court takes the final decision regarding the custody of the child.
In our country, the family courts are run by the doctrine of Parents Patriae. The principle means the court must select, viewing the child's welfare above all. This is why visitation rights are deemed highly vital, allowing the child to bond with both parents. If you are facing challenges related to your visitation rights, or if you have any concerns about your current parenting plan, it is advisable to consult with a family lawyer. Feel free to call/text us to ask queries regarding your rights as a parent (custodial or non-custodial) are refusing your visitation rights, or you are undergoing other issues about your current parenting plan.
Can one's visitation rights be refused if they cannot do child support?
Visitation is a right that cannot be refused as on the incapacity of child support. If one cannot give financing to their child for complex events, the custodial parent cannot deny the right to meet the child. If they refuse one, their right to see the child will result in "frustration of visitation." On being refused, one must approach the family court to get your right.
Can a court reject one's visitation rights?
Yes. If the parent having custody files a complaint or requests the court to refuse the rights of a noncustodial partner, the court may give so on the cause of the objection. The court will call for a hearing after proving that the noncustodial parent is not fit to get visitation rights due to his vicious nature towards the child or if they intend to affect the child immorally.