When a married couple decides to divorce, they not only need to divide their assets, but if they have minor children or children who cannot make their own decisions, the court must also determine who will be the primary caregiver for the child and how child custody will be shared among parents.
The term “custody” essentially means “guardianship” In India, legal custody refers to determining who will be the child’s guardian, and under the Guardians and Wards Act of 1890, the court has complete authority to decide on the child’s guardian. A recent RTI response from the Thane Family High Court revealed that out of 83 child custody battles, fathers were granted child custody in only two cases. This surprising statistic raises questions about whether there are valid reasons for the court to award custody to the mother or if it is merely a coincidence.
Under Hindu law, the concept of “Hindu Minority and Guardianship Act” governs the custody of a child, and it states that the welfare of the child is of paramount importance in deciding custody. In general, the custody of a child under the age of five is usually awarded to the mother as it is believed that the mother is in a better position to take care of a young child’s emotional and physical needs. However, the father may still be granted visitation rights to spend time with the child.
As the child grows older, the courts take into account factors such as the child’s preference, the parent’s financial stability, the ability of each parent to provide a safe and stable home environment, and the parent’s involvement in the child’s life before deciding on custody. In many cases, the father is granted custody of older boys as it is believed that they require a father figure in their life, while the mother is granted custody of older girls as they may need a female role model.
It’s important to note that custody decisions are not made on the basis of gender bias, but on the best interests of the child. The court considers various factors, including the child’s needs, the parent’s ability to provide a stable environment, and the child’s relationship with each parent, before making a final decision on custody.
For a long time, courts have been perceived to favor’s mothers over fathers when it comes to child custody, especially for younger children. However, this “female bias” is not entirely accurate, as courts take into account multiple factors before making a decision. Although mothers are often considered better equipped to care for younger children, fathers can also acquire custody in certain situations. If the mother is mentally unstable or has engaged in unethical behavior’s, or if the child is older than 12 and expresses a desire to live with the father, the court may grant custody to the father. The courts are now striving to make decisions that are in the best interest of the child, irrespective of gender stereotypes.
Legal custody is the concept where one parent is the primary caregiver of the child, while the other parent provides child support following a divorce. When determining custody, family courts prioritize the child’s well-being and consider various factors, such as the medical history and physical and mental health of both parents, to determine which parent is better suited to care for the child.
Financial stability is also taken into consideration, to ensure the child’s needs are met. In situations where domestic abuse is present, courts may intervene to protect the child from growing up in a harmful environment.
Age and gender can also be factors, as mothers may be better equipped to provide care for daughters during menstruation. The child’s medical history, standard of living, and parental lifestyle habits are also relevant to the decision-making process.
The child’s preference for which parent to live with, the emotional bond between parent and child, and each parent’s encouragement of the child’s relationship with the other parent are also considered. Ultimately, both parents are important to the child’s life and the court aims to determine which parent can best serve the child’s welfare.
The notion that mothers always get custody of children is outdated. Courts now prioritize what is best for the child, considering both positive and negative elements. Fathers have an equal chance of gaining custody, especially if the mother is unfit or the child is older and expresses a desire to live with their father. It’s essential to understand that child-rearing duties are not gender-specific, and the court assesses each case individually. Fathers may also choose to sign away their parental rights and support their child financially until they reach adulthood.
