The guide to child custody for men has to be evolved from practical and real-life cases of child custody. There are few judgments and references available unlike lot of material on maintenance, marriage etc.
Update March 15, 2016: this post was written many years back and many points are still relevant, like courts do not usually disturb de-facto custody of child. So if child is with you, then it is very important to retain physical custody of child till you get legal guardian status. As of 2016, based on changing views of law making bureaucrats and some of judiciary about best interests of the children of separated/divorce parents, it’s much better for fathers to aim for shared or joint custody, if the child is with mother and chances of getting full custody for father are not great. Click here for posts on shared parenting/joint custody. In general, chances of full custody for fathers are good only when mother has left child alone in father’s care for a long period of time, and she was basically absent from child’s life for that time.
In some countries, there is specific difference accorded to physical custody vs legal custody. Physical custody means having the child living with you. Legal custody means authority to determine child’s medical care, schooling etc. It is possible for father to have child living with him but have no legal authority to determine important issues about child. For example, it may lead to somewhat absurd situation that if a child has accident, a father may not be able to sign on medical consent form for his child living with him since he has no legal custody of child, only physical custody!
In Indian laws, there is no separate notion of physical and legal custody. The custody for child for Hindus is determined by Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956. HMGA 1956 has overriding effect on GWA 1890. An important provision in HMGA 1956 is Sec 13 which states that “Welfare of minor to be paramount consideration”. With that clause, the favourable clause 19 of GWA 1890 towards fathers for child custody has been overridden. In practical terms, it has meant that child custody can be more easily granted to women in interest of child’s welfare.
Now to evolve strategy for men for child custody, few things have to noted in laws:
HMGA Sec 6 (a) gives custody to mother for child less than 5 years old. So it will be difficult (or maybe impossible) to fight for custody of child less than 5 years old if woman insists on custody. However, it is not impossible and that is the beauty or maybe unfortunate thing about child custody cases. You can skip but may want to read details of case below, specifically the fact that husband was able to retain custody of 4.5 years old daughter, but unable to get custody for the younger daughter. We are not judging allegations, truth, or other elements of the case.
http://www.indiatogether.org/manushi/issue114/law.htm
So when finding such a real life example which helped a woman get custody of one of her children, what learning can men take from it? If you can’t beat them, join them! That is, play the game according to the rules, not by law books and notions of whether your wife or in-laws are at fault or not. Those things may have no impact on decision of court on child custody, because of two reasons:
1. Courts go by principle of welfare of child and not which parent is guilty or innocent of whatever the other party is claiming them to be.
2. Courts do not want to disturb the status quo of physical child custody unless strong evidence can be presented to the contrary.
That brings us to the reality about child custody: physical custody, i.e. child living with you will get you legal custody from court.
To quote from above article:
To answer the question as to who will be awarded custody, the structure and procedures of a civil court have to be kept in view. These become far more relevant than proclamations from the higher judiciary or rights under different personal law. Each case will be decided on its own merit. In most cases, the question of rights gets reduced to evolving an effective legal strategy (emphasis mine).
So the strategy would be:
1. Ensure that you have physical custody of the child, and do not lose the child to woman party. Use help of parents, siblings, or even domestic help to ensure that child is not taken away by woman party. If the child goes to school, ensure child is not ‘kidnapped’ on way back home by woman party.
2. In case woman takes children away, you could use the same strategy to get children back, and immediately file for custody of the children. Read the case below which worked for woman, similarly it can work for a man:
To give an example, Maria had been thrown out of the house, without her two daughters, aged four and one. By the time she approached us, six months had lapsed since the event. She wanted custody of the younger daughter. In order to ensure the custody, we advised her to go to the house and pick up the child with the help of a social agency at a most opportune moment. The strategy succeeded. Within two days, the husband moved the court for custody but so did Maria.
3. The case will go into hearings. It may take months or maybe years. By that time the children will be well settled with you. The courts usually will not disturb the working arrangement unless strong evidence is presented by other party that it is not in interest of children. Again refering to the case which is so well written that there is no need to add comment:
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The cases were grouped together. On the first day itself an order was passed that neither parent will disturb the custody of the other child. The husband?s advocate flaunted hospital papers of an earlier mental depression suffered by Maria to make her look like an unfit mother. But, this did not influence the judge. After some time, we moved for access of the older child over weekends and holidays, which was granted. Similar access was not granted to the younger child as we argued that at this stage the child is too young. The case came up for final hearing after three years. By this time there was nothing further to do except retain custody with the respective parent. The issue of mental depression had become redundant by then. The court also granted the mother a lump sum maintenance. The custody battle may have been extremely traumatic if the child was not with her during this period.
If the mother has left the matrimonial home without the child and not taken any steps to claim the custody of the child for several months, by the time she stakes her claim for custody, the child would have comfortably settled down and the mother may have become only a faint memory. In such a situation, it is highly unlikely that she will be awarded custody. The mother will have to prove gross neglect on the part of father, which is difficult if the child is well settled and happy.
At best the mother will be granted right of access or visitation rights. Even this becomes problematic, because by then the child would be tutored against the mother. Ascertaining the wishes of the child also becomes meaningless as children usually reflect the opinions of the elders towards an absentee parent. It is very easy to convince a teenager that her mother is a woman of loose character and has abandoned her for selfish reasons.
4. The principle of child living with you can alone ensure a man of winning the child custody battle. Again quoting the case:
So despite the positive decisions discussed above, one principle alone will ensure that women are awarded custody that is, to leave the home with the children or in any case to reclaim physical custody with the help of a social agency, the police, or even at their own initiative, before starting the legal battle. Usually women are apprehensive that they may be charged with kidnapping. But it is highly unlikely that a biological parent will be charged with this offence unless, of course, the child comes to harm. If, at the time of taking the custody of the child, a letter is filed with the local police to this effect, it will avert any further complications.
The next step is to approach the court and obtain an immediate ad-interim order of custody (temporary custody while the case is being decided) and an injunction restraining the husband from taking away the child. This relatively simple step more or less seals the fate of the matter as in Maria?s case. Knowing the slow pace of our civil courts, it will be at least six months to one year before even an interim application for custody comes up for hearing. By then the child would have been admitted into a new school and would have become accustomed to the new environment. Rarely would a court grant custody to the father, if the child is well settled with the mother. The same principle also applies to a child who is left with the father(emphasis mine).
Once a legal battle commences, the simple principle followed by the courts is to award interim custody to the parent who already has the physical custody, and award visitation rights to the other parent. This is usually over weekends and school vacations so that studies are not disrupted. Courts tend to believe that the welfare of the child lies in maintaining relationships with both parents.
We need to see the last sentence being applied to fathers for child visitation.
Sumit says
April 24, 2018 at 11:53 amI have been married FOR OVER 4 Years now and have a 1.5 years old son. Though my wife and I are staying in the same house along with my mother. I as well as my wife are working and my mother looks after my son during the weekdays and on weekends my wife and I look after our son.
Things have gone from bad to worse between me and my wife, I have been contemplating the idea of divorce to attain some sort of peace in my highly turbulent life. But the only deterrent is the fact that whether I will get the custody of my son.
As already told, my mother is the one who is looking after my son and I have on numerous occasions including (4-5 days outstation visit just me and my son) looked after him without the help of my wife and my mother.
Can anybody guide me as to what my strategy should be to get the custody of my son?
videv says
June 23, 2018 at 7:16 pmIt may be difficult to get full custody, and to get full custody you have to prove strong neglect or such faults in child-care by wife, mere problems between couple are not of much concern to judges in deciding custody issue.
Usually at tender age, it’s difficult to get even shared custody so one strategy may be to wait it out, or hope the case will anyway run for few years by when the child will be 5+ years, and it becomes easier for father to get some kind of shared custody at least.
More details in book: Child custody, guardianship, interim custody/visitation for fathers
Ardamanjit says
November 26, 2017 at 4:12 pmSir i have been married since 9 years. I have 8 years old son. My wife is now dont want to stay with me and my family. I have done many efforts to solve the issue so that our child was not going through the hard time like without her real mother or his real father.but my wife dosent understand any of my wording and still stand on their words to left us. But i dont want to loose my son at any cost. What can i do….please help me.
videv says
December 9, 2017 at 3:18 pmIf mother is unfit or her sold influence or sole custody is not good for child’s welfare, then depending on severity of situation you can file for custody (sole custody since law doesn’t allow shared custody as of now), and later if joint custody/shared parenting is a workable arrangement, you can agree to that.
Santhosh says
September 19, 2017 at 12:15 amHi all brothers….
I have been married since 20 months and in that my wife stayed with me around only for three months all together with breaks in between. since i stay in other place separately from my parents i have did my best to fulfill her needs and did my best as a husband and now we have a child of 5 months and my wife n daughter stays in her parents home since last 11 months. my wife is educated and still is not concerned about me and my family more over her own better future too. she and her whole family is dramatic and have playing a lot and not letting her to live with me and now a days she not allowing me to see my daughter too. Its hurting a lot.
Please i request all you brothers to help me suggesting on this.
videv says
September 19, 2017 at 5:31 pmFor meeting child you will have to apply GWC case in family/district court as applicable, and ask for visitation/interim custody in interim application. Keep asking for more time/weekend access as the child grows.
This book covers all aspects of child custody/visitation etc: gitbook.com/book/videv/child-custody-guardianship-and-visitation-for-fat/details
Sudeep Kumar P says
November 1, 2018 at 9:20 pmThe link to the book is not working. Can you share it please?
videv says
November 3, 2018 at 1:02 pmPDF: https://legacy.gitbook.com/download/pdf/book/videv/child-custody-guardianship-and-visitation-for-fat
online: https://videv.gitbooks.io/child-custody-guardianship-and-visitation-for-fat/content/
kandarp Jain says
May 18, 2016 at 2:43 amAshish where r u based now any number to call u…i can imagine what you must be going through..i fought my case on my own with athe help of lawyer and did not pay any maintainance and alimony and now waiting for visitation to happen which they are creating problems in but with time will get it soon…. bu dont worry things will fall int place send me you number
videv says
May 18, 2016 at 9:17 amIt might be better idea to join the groups if you want to help others. Because most people leave a comment once and don’t come back.
kandarp jain says
May 20, 2016 at 4:07 amsure how do i do that
videv says
May 20, 2016 at 10:55 amclick on top right green button on Join WhatsApp/FB groups and follow instructions. FB group is where more detailed/threaded discussions happen but both are open to all
ruban says
November 8, 2017 at 3:50 pmI am in need of a advice from, facing a similar case and dot want to pay single penny as my wife who left me and not I. Please do contact me at the earliest.
videv says
November 8, 2017 at 7:41 pmfriend, you need to wake up and join some MRA groups in your city and online. People are busy enough in their own lives, that someone should pick up the phone and call you to tell you how not to pay single penny to wife!
Ashish says
May 8, 2016 at 7:20 pmIts been 3 years since I have seen or heard my son’s voice. I had dropped my wife and son to Delhi Airport on 14/05/13. She reached Ranchi where she was picked up by her father and driver. She called my mother to tell that she has reached and then again she called on my mother’s cell phone after reaching Bokaro. She did not reply to my SMS or didn’t allow me or my mother to speak to my son. After two days we found out that passports, pan cards and locker keys are missing. We went to the bank in Panchkula to find out that locker had been operated on 13/05/13 (12:50PM). we got the proof for this activity only recently and haven’t yet deposited the same in court since the case is on argument.
It was an arranged marriage and we did not know anyone related to them. 7 years of our marriage and no one from her home had ever visited us(parents, brothers). I used to call them sometimes but they never responded or spoke much. in 2012 she and her younger brother (based in Kolkatta) had made me buy land near Kolkatta. The whole amount was paid by me and my mother (through Bank transfer). We never got to see those papers as well.
Later on, after a coule of days, on 21/05/13, we realized that there is something wrong and contacted an advocate, our family friend, who suggested us to file a RCR and Child custody immediately. We did the same. In July 2013, 498a was filed against me and my parents at Bokaro. We got bail in that case from Jharkhand High Court. The cases (RCR and child custody) got transferred to Bokaro from Panchkula by Supreme Court in 2013 November. In Decemeber 2013, she filed for divorce on the basis of cruelty and me having an affair. Child custody case, which I had filed in Panchkula,dismissed due to non appearance of either party. apparently, Panchkula court did not get transfer orders from Supreme Court and the papers for transfer were submitted to the court much later by myself and by that time, due to non-appearance of either party, the court had dismissed the case. Anyhow, dismissed case was transferred to Bokaro Family Court, where I have re-admitted the case in February 2016.
Jharkhand High Court has called the opposite party to justify the 498a case, but they haven’t appeared before the judge/court. Order to appear was sent to them in Decemeber 2015. Family court had ordered me to pay an interim maintenance of 2000Rs to the woman (who is working in a hospital in Bokaro- papers of her working have been submitted in Family court) and Rs.2000 for my son. The court had also ordered the woman to open a bank account and share the same with me, which they haven’t done.
Till now court has not granted me visiting rights to my son. In the meantime, she has submitted some Psychiatric medical certificate (from Bokaro general Hospital) stating that I used to abuse my son and because of that he is under medication /treatment from BGH and I should be kept away from him.
I somehow came to know where my son is studying and went to his school to meet his teacher, who told me that he is normal and studying well.
What I want to know is can people like my ex-wife and her family be punished through law?how long will it take?will I get my son’s custody? is there some or someone that I can contact who can help me in meeting my son?
Court procedure is so slow that in three years all I have seen is judges being continuously transferred.
videv says
May 9, 2016 at 7:36 pmJudges get transferred all the time.
>>What I want to know is can people like my ex-wife and her family be punished
For what crime exactly? And anyway in my experience, it’s men who are most reluctant to see a woman punished for false cases even when it’s seen by millions on national TV (ref rohtak sisters case).
>> Anyhow, dismissed case was transferred to Bokaro Family Court, where I have re-admitted the case in February 2016.
>> Anyhow, dismissed case was transferred to Bokaro Family Court, where I have re-admitted the case in February 2016.
So practically speaking the child custody case is few months old. Anyway, try to get visitation order in summer and school vacations etc since child is in far away place.
Karunamay says
March 8, 2016 at 10:06 pmMy wife is working woman, and i am self emploed my office atteched in my home, my wife not attending my 8 month daughter, my mother in law age @ 60year attending my daughter, can I castudy my daughter 10.30am to 6pm . Please send answer
Chiranjeevi says
November 16, 2016 at 8:41 pmHi, Did you get any response ? Even I am facing the same issue. Can I get custody of my daughter if mother is not physically taking care of my daughter ?
Vijay Malshe says
June 25, 2017 at 4:56 amMy son wants custody of his 3years old son.his wife is cruel and beating and. Abusing child.will he get custody.
videv says
June 25, 2017 at 1:11 pmWill the mother admit in court she is beating child? Are there injury marks and medical certificates, or can they be shown if child is brought in front of judge?
Your best bet is to get some visitation orders also, so at least a relationship with child is maintained regularly. The court cases are drama or at least made into a drama within the System. Many judges have made a rule that they won’t give custody of child less than 5 years since according to them that’s written in law (and they don’t care to read or just ignore latest judgments). That’s because fathers don’t apply either because they are misled by ignorant or 3rd late lawyers that father won’t get custody of child less than 5 years.
The sole principle is “welfare of child”. This book has many judgments on same:
https://www.gitbook.com/book/videv/child-custody-guardianship-and-visitation-for-fat/details