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.
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.