This article has been written by Ms, Neha Singh, a Third-year student of Lloyd Law College, Greater Noida.

Abstract:

One of the most difficult aspects of divorce is child custody. It directly affects the wellbeing of the child as well as the parents and their children. The custody of a child after the separation of the parents is not good for the child. 

When a parent receives custody of a child , it means that the child (if under 18) has the legal right to care for them. The parent who has custody of the kid is expected to provide for their financial stability, uphold the child’s healthy lifestyle, provide for their emotional, physical, and medical needs, and provide healthcare. The only person who has access to and meets the child is the other parent.

Introduction: 

child custody disputes are never pleasant, not only for the parents whose children end up as the focus of this type of litigation (which stems from marital disagreement and separates them from one another), but also for the child or children who are at issue. These young children require the presence of both parents for good upbringing; this is necessary for a variety of reasons, including economical, psychological, and security-related ones.

Not only do these children lose out on their parents’ company while they are separated, but when the divorce leads to a custody dispute in court, the situation is much more painful for the children for a number of clear reasons. For this reason, the most regrettable situations are those that have a significant influence on young children. The wellbeing of the children must always come first when making decisions about custody.

The interests of children are extremely important to the courts. Every other factor is incidental. If the court determines that the mother is unable to care for her children on her own, the mother may even be refused custody of her child under Section 21. The courts refrain from making any decisions that are detrimental to the child’s welfare.

Types of Custody available in India:

• Physical Custody of the Child:  When one parent receives a decree of physical custody, the children will be placed under their care, and the other parent will be granted access to sometimes see the child. The most common way to guarantee that the child has all the advantages of family and receives the finest upbringing possible is through this type of custody. While attempting not to deprive the child of his parents’ attention throughout his formative years, the environment surrounding the youngster is made fulfilling and enlightening.

• Awarding of joint custody:  When there is joint custody, each parent has the legal right to custody, enabling them to take turns raising the children. Contrary to popular opinion, shared custody does not require the separated couple to continue living together after the courts have approved their divorce. For two main reasons, shared custody is one of the better options when it comes to custody disputes. The most important thing is that no parent experiences deprivation. Custody rights, whatever their name, are not comparable to access rights. As a result, granting joint custody rights guarantees that both parents contribute significantly to the development of the children. The child benefits equally from both parents’ affection, which is the second benefit of joint custody. A youngster who has experienced parental separation, regardless of the circumstances, is left with a psychic scar. The youngster can have equal access to both of his parents’ attention thanks to this arrangement.
• Third Party Custody:  As the term implies, neither of the biological parents has the custody right. This is due to the court’s determination that neither parent is competent of rearing a child and that it would not be in the child’s best interests to grant any parent the child’s rights. The right to be the child’s guardian is granted to a third person who has some sort of relationship to the parents.
• Sole Custody: When there is single custody, one biological parent has the exclusive right to the child’s custody. Because the other parent has a history of abuse or is unable to provide the kid with any kind of benefit, they are kept at a total distance and are not granted any authority over the child.

Different types of Custody Laws in India

India, a country where individuals from many communities live, has a variety of personal laws to address social problems. The personal laws and the central legislation can occasionally be in stark contradiction to one another. The several personal laws that address child custody following a parent’s separation are:

Custodial rights under Hindu law: 

The personal Hindu laws deal with marriage and the rules that follow separation. The following guidelines are outlined in the Hindu Minority and Guardianship Act, 1956, Hindu Marriage Act, 1955, and Special Marriage Act, 1954 regarding the transfer of a minor’s custody rights upon separation.

1. Section 26 of the Hindu Marriage Act, 1955 : Only in cases where both parents identify as Hindus are the provisions outlined in Section 26 of the Hindu Marriage Act addressed to the upbringing and education of the child. This statute allows for the passing of orders at any point in time, superseding any pending decrees within 60   days of the notice date.
2. Section 38 of the Special Marriage Act, 1954: This clause addresses the rights to custody when parents practice different religions. This statute allows for the passing of orders at any point in time, superseding any pending decrees within 60 days of the notice date.
3. Hindu minority and Guardianship Act, 1956: The custodial rights of third parties are not taken into account by the laws. The Act’s provisions exclusively address the biological parents’ custody rights, taking into account their Hindu faith.

Child Custody and Domestic Violence: 

up to 15.5 million children. relationship violence exposure to children in families where men seek treatment for victimization due to relationship violence. 

In actuality, there is a major pandemic of domestic violence in American culture. One spouse’s decision to end a relationship or file for divorce is frequently sparked by domestic violence in a marriage. The question of child custody then comes up if there are any children involved.

while it comes to domestic abuse events, the court’s ultimate duty is to take the “best interests of the child” into account while determining child custody. This implies that they have to give way to the child’s safety and well-being.

Impact on Child Custody:

Legal actions pertaining to child custody can be significantly impacted by domestic violence. When it comes to custody judgments, courts put the child’s best interests first, and evaluating those interests can be heavily influenced by the existence of domestic violence. Domestic abuse can have different effects on child custody depending on the jurisdiction and particular circumstances, but common factors to take into account are as follows:

• Primary Consideration: Child Safety and well- being: The child’s safety and wellbeing are the main priorities in child custody proceedings. The court may be likely to limit or restrict the abusive parent’s custody rights if domestic violence is present or has happened because it may consider it to be a substantial threat to the child’s safety.
• Types of Domestic Violence: Courts take into account a variety of domestic abuse cases, such as financial, emotional, sexual, and physical abuse. Decisions about custody may be influenced by the type and intensity of the abuse.
• Documentation and Evidence: Courts frequently depend on documentation and proof of domestic abuse, including witness testimony, police reports, medical records, and protection orders. The court’s decision may be influenced by the veracity of the claims and the evidence.
• Perpetrator’s Rehabilitation Efforts: f an abusive parent has attended therapy or anger management classes, for example, to confront and correct their conduct, the court may take it into consideration. Sincere attempts to recover could be seen more positively.
• Effect on Parenting Capacity: A parent’s capacity to give their child a secure and supportive environment may be impacted by domestic violence. Custody choices may be affected if the court feels that the abusive behaviour might impair the parent’s capacity to parent successfully. 
• Supervised Visitation and Protective Orders: To protect the victim and the child in situations of domestic abuse, the court may provide protective orders. In order to protect the kid from harm when they are with the abusive parent, visitation rights may also be restricted.
• Parental Alienation Concerns: An abusive parent may try to keep their child apart from the other parent in certain situations. The possibility that one parent is harming the child’s impression of the other parent may be taken into account by the court.
• Custody Arrangements: Depending on how severe the domestic abuse is, the court may impose supervised visitation for the abusive parent or give the non-abusive parent exclusive custody. In severe circumstances, the abusive parent might not be allowed to see the child at all.

Cases related to Child Custody and Domestic Violence:

1. Roxann Sharma V/S Arun Sharma (2015  8 SCC318)  : It is a significant ruling concerning child custody. In this case, the Supreme Court rules that the mother should have custody of children under five years old.

The Supreme Court ruled in this case that although both parents have equal parental rights, a child’s early years need the greatest amount of care, which a woman can provide.

It was decided that the mother should have custody of any younger children under the age of five. Unless the father can demonstrate that granting the mother custody of the children will interfere with the child’s development. In this instance, the court further declared that the father was unemployed, an alcoholic, and partially incapable of raising the child in a manner appropriate to him.

The woman was educated, the professor would give the kid a decent life, and the court stated that her bipolar illness was not fully confirmed. As a result, the mother was granted primary custody by the court.

• Ram Murti Chopra and Anr. v. Nagesh Tyagi CM(M) No. 752/2000 :

The father will have custody of the child for one week during each holiday season—Dusshera, winter, and summer—while the mother will have custody for one month for the summer breaks. This directive comes from the court. The father will still cover the costs of schooling and other related fees, as he has in the past.

Conclusion: 

One of the most delicate and complicated matters resulting from the parents’ divorce processes is child custody. As can be seen, the judges’ compromise on this matter serves as the primary framework for custody decisions. The State’s uniform legislation and the many religious laws have been sharply at odds with one another. However, the child’s future shouldn’t be jeopardized by the debate over differing legal perspectives. The primary reason for granting custody of a child is to ensure their welfare and social security, which should be kept in mind when settling different legislative issues. Therefore, any legal obstacles on this front should be examined and then removed.

Even though decisions about child custody and visitation can be challenging, there are techniques that can help you make wise choices. Understanding the characteristics of abuse can help to explain and streamline custody and visitation decisions in situations including domestic abuse, sexual assault, and dating

Stalking or acts of violence might be problems. Understanding the mechanics of abuse and the strategies of coercive control, by studying the relevant literature and keeping an eye on the family, can help you make orders that are child-centred, appropriate, and enhance safety

REFERENCES:

 Child Custody with respect to Indian Laws : this article is written by Anupam Bhaduri, from Jogesh Chandra Chaudhuri Law College , Calcutta University.

• https://www.myadvo.in/blog/child-custody-laws-in-india/
• the Hindu Marriage Act, 1955
• the Special Marriage Act, 1954
• Hindu minority and Guardianship Act, 1956
• Child custody law in India by  Swati Shalini