Child custody and guardianship

In a custody proceeding the court is not deciding between two parents' rights. It is deciding what arrangement serves the child, and it is entitled to depart from what either parent has asked for.

• Guardians and Wards Act, 1890
• s. 6 HMGA 1956
• s. 26 HMA
• s. 21 PWDVA
• s. 12 GWA — interim custody

The welfare principle

Every statute that touches custody says the same thing in different words. Section 17 of the Guardians and Wards Act, 1890 requires the court to be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Section 13 of the Hindu Minority and Guardianship Act, 1956 makes the welfare of the minor the paramount consideration and says expressly that no person is entitled to guardianship if the court is of opinion that it will not be for the welfare of the minor.

The practical consequence is that a parent's conduct towards the other parent matters only so far as it bears on the child. Courts are consistently unimpressed by custody petitions that read as a continuation of the divorce.

Custody is not guardianship

Custody is the physical care and day-to-day control of a child. Guardianship is the legal authority to act for the child — to consent to medical treatment, operate accounts, apply for a passport, deal with property. A parent can have custody without being the appointed guardian, and can be appointed guardian of the property without having custody of the person. Under section 6 of the Hindu Minority and Guardianship Act the natural guardian of a Hindu boy or unmarried girl is the father, and after him the mother, with the proviso that custody of a child below five years shall ordinarily be with the mother.

Types of custody

• Physical custody with visitation. The child lives with one parent; the other has defined access. This remains the most common arrangement.
• Joint physical custody. The child spends substantial defined periods with each parent. Courts have moved towards this where the parents live close to one another and can communicate, and where the child's schooling is not disrupted.
• Legal custody. Decision-making authority over education, health and religion, which can be shared even where physical custody is not.
• Third-party custody. Rare, and ordered where neither parent is found suitable — typically to a grandparent.

How a petition proceeds

1. Petition. Under section 7 of the Guardians and Wards Act for appointment or declaration of guardianship, or under section 26 of the Hindu Marriage Act where a matrimonial petition is already pending before the Family Court.
2. Interim custody or visitation. Section 12 of the Guardians and Wards Act allows interim orders. Where a parent has been cut off from a child entirely, an interim visitation application is usually the first thing filed.
3. Notice and reply. The other parent, and in guardianship matters any other person having an interest, is served and files a reply.
4. Interaction with the child. The court may speak to the child in chambers, without the parents or their advocates, to form its own impression. This is not a vote, and the court is not bound by what the child says, but the views of an older child carry real weight.
5. Evidence. Affidavits and cross-examination on the parties' circumstances, arrangements for the child, income and living conditions.
6. Order. Custody, visitation and, where sought, appointment as guardian.

What the court considers

• the age of the child, and whether the child is of tender years
• the child's own preference, where the child is old enough to form an intelligent view
• continuity — schooling, friendships, the neighbourhood the child knows
• each parent's ability to provide care in practice, including working hours and available support
• the willingness of each parent to allow the child a relationship with the other
• any history of violence, substance abuse or neglect
• the presence of siblings, whom courts prefer not to separate
• financial capacity, which is relevant but is not decisive on its own

Drafting a visitation schedule

A schedule expressed in principle rather than in dates generates fresh litigation within months. A workable order specifies: which weekends, and whether alternate or fixed; pick-up and drop-off times and the exact place; who does the travelling; the division of school holidays; the arrangement for the child's birthday, each parent's birthday and major festivals; provision for video or telephone contact and at what times; notice required for travel outside the city or the country; and what happens when a scheduled visit is missed.

Handovers at a neutral location, or at a police station or the court complex where relations are hostile, are commonly directed and are worth asking for before a dispute arises rather than after.

When orders are breached

Where a parent refuses to comply with a custody or visitation order, the remedies include execution proceedings, contempt, and an application to modify custody in light of the breach. Where a child has been removed and is being wrongfully detained, a habeas corpus petition before the High Court is sometimes the faster route, particularly where the child has been taken out of the jurisdiction. Where one parent is abroad, see the page on NRI and cross-border matters.

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