In the context of family law, Legal Custody is a sort of Child Custody that gives a parent the authority to make long-term, significant choices about their children. The problem of child custody often arises during a judicial separation or divorce process, and it becomes a critical matter for the courts to resolve.
It refers to the process of a custodial parent caring for, controlling, and sustaining a child under the age of 18 years to whom the Court has awarded rights based on certain parameters such as lifestyle, financial security, and understanding with a child. The parent with custody rights has the primary responsibility for the kid’s health, education, physical and emotional development, and so on, whereas the non-custodial parent has merely the right to access and meet the child.
In most cases, both parents have access to their children, but physical custody is usually given to one parent exclusively. The best interests of the child must be prioritized by the Family Courts when making this decision.
TYPES OF CHILD CUSTODY INDIA: In India, it has been held in numerous decisions that the child’s best interests in a matter of Child Custody take precedence above all other legal considerations. Under various laws and regulations, the court awards this right to child custody to both or one of the parents.
1.) Physical Custody: In this situation, the child lives with the custodial parent and participates in all daily activities.
2.) Joint Physical Custody– In this custody, the child spends a significant amount of time with both parents and has equal rights to the child.
3.) Sole Custody– In this case, only one parent has the right to live with the child. This custody arrangement is used when one of the parents is abusive, violent, unstable, or unable.
4.) Third-Party Custody– Neither of the biological parents has any rights to the kid under this custody, so the Court gives custody to a third party.
5.) Custody of the child to the father– Custody battles for fathers can be difficult at times. Despite the fact that most courts have rejected the earlier premise of making the mother the primary caregiver, many people in society still believe it. In India, it is widely thought that no one is a better caregiver than a mother. Regrettably, this is not always the case. Although the mother is given first priority when determining custody, the father might get custody in the following ways:
i) If the mother agrees to relinquish custody, the father may obtain custody of the kid.
ii) If the mother is mentally ill, the father will be the next in line to receive child custody.
iii) If the child is over the age of 13 and expresses a desire to live with his father, the Court will grant him custody.
iv) In cases where the mother has a bad reputation that could harm the child, the father will be awarded custody.
v) If the father establishes that the mother is financially incompetent, the child’s future upbringing may be harmed, and the child may not receive sufficient care.
vi) If the father establishes that the mother has a criminal record and the child remains with her, the child’s upbringing will be jeopardized, and his mental and physical development may be harmed.
vii) If the mother is a convicted felon, the child’s custody will be given to the father.
CAN A FATHER FIGHT FOR THE CUSTODY OF HIS CHILD EVEN IF HIS NAME IS NOT ON THE BIRTH CERTIFICATE?: The presence or absence of a father’s name on a birth certificate can have a substantial impact on his custody rights. In most situations, if a person’s name appears on the child’s birth certificate as the child’s father, courts will automatically decide that he is the child’s legal father.
Because he is the legal father of the child, the father will be allowed different custody rights. Even if the person is not the biological father of the child, but his name is written as the child’s father on the birth certificate, courts may grant him custody rights in certain instances. The Court may also impose additional obligations on him, such as paying child support if it becomes due.
However, if the father’s name is not on the kid’s birth certificate, the Court may refuse to grant the father any custody rights, partial or full, over the child. If he wants legal rights and is also the child’s biological father, he will have to take a paternity test to show the Court that he is the biological father.
CONCLUSION: Although the courts do not discriminate against fathers, a father’s custody battle can be tough to win. Whether a father seeks sole custody or joint custody of his child, he should expect a difficult child custody battle, especially if the child’s mother is also battling for custody. In order for a father to gain custody, he must make all child support payments on time, develop a solid relationship with him, and respect him as well as the mother.
ENDNOTES: https://www.lawyersclubindia.com/Articles/permanent-child-custody-14296.asp
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