Child Custody Rights in a Divorce


Child Custody Rights in a Divorce

The most traumatic part of a divorce is inevitably the custody of the child. Even though both the parents continue to be the natural guardian of the child, only one of them gets the physical custody. Below are some pointers that will give you a clear understanding regarding the custody of children after a divorce.

  • PRINCIPLE: The one guiding non-negotiable principle which decides who will get the custody of the child after the divorce is ‘best interest and welfare of the child.’ Best interest includes everything like the child’s emotional, educational, social and medical needs. This principle is also applicable for divorce with mutual consent.
  • RIGHT OVER THE CHILD: Even though the custodial parent is the primary caretaker responsible for the emotional, medical and educational needs of the child, the non-custodial parent will not lose the right over the child and will have right of access to see the child.
  • DETERMINING FACTORS: Financial capability is not the foremost criteria for granting custody to a parent; what is considered in the capacity to provide a safe and secure environment. Since the mother is the preferred custodial parent when the child is of tender age, a non-working mother will not be disqualified and the earning father will be asked to provide child support. Once a child attains a discernible age, custody and access issues are decided as per her/his wishes, and the belief that the father will have uncontested right is wrong and displaced.
  • JOINT CUSTODY: In this case, both the parents have legal custody of the child, but only one will have the physical custody and be the primary caretaker. Even though the concept of joint custody does not exist in statues, it gives the parties a larger negotiating space.
  • ENTITLEMENT OF NON-CUSTODIAL PARENT: The non-custodial parent may be entitled to any or all of the following:
    • Access could be daily, weekly, fortnightly or monthly or free access with no schedule;
    • It could be day access or overnight access;
    • There could be gradual increase including weekend and/or vacations;
    • Could include the right to be a part of school events.

         This list, however, is not exhaustive and depends entirely on the relationship of the estranged parents.

  • DUTY TO MAINTAIN: Every right comes with a corresponding duty. The highlights of custodial duties would be the following:
    • Duty to provide and maintain
    • Duty to provide for education; this could be a one-time lump-sum payment or staggered payment depending on different stages of the child’s educational life
    • Duty to provide for sufficient day-to-day expenses
    • Duty to maintain or improve the child’s standard of living
  • STATUS OF PROPERTY: Property in the name of the child with either parent can be given as lump-sum and rent from the said property can be used for monthly expenditure. Long-term investments like insurance and educational policies should be factored in. The court is parenspatriae, the ultimate guardian of the child and her/his property. The child’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

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