December 23, 2023

Unravelling the Financial Responsibilities of Custodial and Non- Custodial Parents: legal Framework

This Article is written by Mr. JAGRIT SINGLA, student of Baba Farid Law College, Faridkot. 

Abstract:

This Article delves into the landscape governing the financial responsibilities of the custodial and non-custodial parents and their legal obligations after the divorce or judicial separation. Focused on the legal obligations established through Court orders, divorce decrees, or separation agreement, it examines the key aspects such as child support, healthcare, and education expenses, along with the day-to-day living expenses of the child. With the help of some case laws and providing insights into the complexities of the Family Law, this article offers a clear guidance for the parents’ financial responsibilities.

Introduction:

In the complex world of family law, one critical aspect is the delineation of financial responsibilities between custodial and non-custodial parents. The divorce and legal separation between the parents bring about the numerous challenges and one is the financial responsibilities of the children and the legal obligations play a vital role in establishing a framework that ensures the financial well-being of children involved. The custodian of the child has the obligation to take care and meet the day-to-day needs of the child. 

Child Custody:

Child custody refers to parent’s legal rights and responsibilities towards their children following divorce or legal separation. The custody of the child may be-

  • Sole Custody, where one parent has the exclusive right, or
  • Joint Custody, where both the parents share the exclusive legal and physical custody.

The responsibilities of the child include the decisions regarding the physical custody, i.e., where the child will live and the legal custody, i.e., who will make important decisions regarding the upbringing and welfare of the child. The ultimate goal of the child custody is to protect the child’s best interest.

Under the Hindu Law as well as Secular Law, the custody of the child under the age of 5 years is usually awarded to the mother. In most the cases, the custody of the older boys is given to the father while the custody of the older girls is given to the mother of the child. The Hon’ble Supreme Court and other Courts also in different cases have repeatedly mentioned that while providing the custody of the child, the only consideration shall be the welfare of the minor child. Wherein, if a parent is found to neglect and ill-treat the child, then the custody should not be granted to that parent.  

#Case: “Mausami Moitra Ganguli versus Jayant Ganguli” (2008) 7 SCC 673, in this case the Hon’ble Supreme Court while dealing with a case regarding custody of a minor child observed, the principle of law in relation to the custody of a minor child as well settled; it is the pedestrian that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and the rights of the parents. The provisions laid down in the laws pertaining to the custody of the child contained in either The Guardians and Wards Act,1890 or The Hindu Minority and Guardianship Act,1956 also hold out the welfare of the child as a predominant consideration. In fact, no Statute can eschew or obliterate the vital factor of the welfare of the minor.

Child Support:

Child Support is one of the cornerstones legal obligations of the custodial as well as non-custodial parents. Non-Custodial parents are often mandated by the Court to contribute financially to the custodial parents for the benefit and welfare of the child. Courts typically determine the amount based on some following factors, viz: –

  1. Income of the parents,
  2. Living expenses of the child,
  3. Educational expenses of the child,
  4. Health-care expenses of the child,
  5. The child’s age,
  6. The parent’s physical and mental health,
  7. Child’s preference,
  8. Other basic needs of the child.

Understanding and adhering to the court-ordered child support is crucial for maintaining financial stability and meeting the child’s essential requirements.

In, “Thrity Hoshie Dolikuka” versus “Hoshiam Shavaksha Dolikuka” (1982) 2 SCC 544, the court reiterated that while deciding the question of the custody of minor child, the only consideration of the court should be welfare and interest of the child and it should be the special duty and responsibility of the court. Mature thinking is indeed necessary in such situations to decide what will ensure to the benefit and welfare of the child.

Challenges Faced by Custodial and Non-Custodial Parents:

Both the custodial as well as non-custodial parents face challenges differently regarding the upbringing of the child. The challenges faced by the parents may be financial challenges or emotional challenges. For instance, the custodial parent bears the day-to-day expenses of the child which can become very thought-provoking for the single parent to tackle these expenditures all alone. On the other hand, the non-custodial parents will have very limited visitation rights so, it becomes emotionally very difficult for him/her to establish a consistent routine and maintain a strong bond with the child. So, both the parents custodial as well as non-custodial need to seek support of each other when needed.

Financial Responsibilities of the Custodial and Non-Custodial Parents:

    • Day-to-Day Living: Mainly, the custodial parents bear the day-to-day living expenses of the child including food, shelter, clothing, and other necessities. These expenses, however, may not be explicitly outlined in the legal agreements between the parents but they form a crucial part of the financial responsibility of the child. Generally, these types of responsibilities are met by the parents in open communication in the interest of the child. 
  • Healthcare Expenses: The financial responsibility reading the healthcare cost may be shared by both the custodial as well as non-custodial parents. The healthcare expenses include medical insurance premiums, medication cost, and other medical costs. The legal agreements between the parents generally specify the amount being divided between the parents and how it is to be divided, while ensuring that the child has access to necessary healthcare without causing undue financial strain on either parent. 
  • Educational Expenses: Education is another significant dimension in the life of the child and the legal obligations often encompass the educational expenses of the child. The financial responsibility of the custodial and non-custodial parents regarding the educational expenses includes the school & tuition fees, extracurricular activities, etc. Clear communication and adherence to legal agreements help provide the child with educational opportunities while fairly distributing financial responsibilities which helps in contributing the child’s educational development. 

Legislations Governing Child Custody in India:

India is a secular country and thus, has different personal laws according to their religions set for the custody of the child. Some of the laws governing the child custody are mentioned below:-

    • Hindu Marriage Act, 1955: “Section 26” of the Hindu Marriage Act, 1955 provides the provision regarding the custody of the child. This Act is applicable when both the parents are Hindus. Section 26 provides that the Court may pass any order, judgment, amendment, etc. any time with respect to the custody, maintenance and education of the minor child and may also revoke, suspend or vary such orders for the welfare and interest of the child.
  • Special Marriage Act, 1954: “Section 38” of the Special Marriage Act, 1954 provides the provisions related to the custody of the child. This Act validates when both the parents belong to different religions. It provides, the Court may pass any order, judgment or amendment regarding the custody, maintenance, and education of the child as it may deem fit and proper.
  • Hindu Minority and Guardianship Act, 1956: “Section 6” of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardian of a Hindu minor in case of:
  • Boy or unmarried girl: Father and after him, the mother;
  • Minor below the age of 5 years: Mother;
  •  Illegitimate boy or illegitimate unmarried girls: Mother, after her, the father;
  •  Adopted Son who is minor: the adoptive father, and after him, the adoptive mother. (Section7 of the Hindu Minority and Guardianship Act,1956)
  • Custody under Christian Law: Under the Christian Law, the provisions regarding custody of the child are set up under the “Section 41 of the Divorce Act, 1869”. The custody of the child is given to  the person who is better server of the child and who is proved to be a better guardian for the child. If both the parents are incapable of giving a proper atmosphere to the child, the court can deny the custody claim.


  • Custody under the Muslim Law: Under the Muslim Law, the mother has the right to seek the custody of the child, until the age of 7 years for a boy and until she has attained the age of puberty or majority for a girl.


  • Custody under the Parsi Law: Under the Parsi Law, the provisions regarding the child custody is dealt with the Guardians and Wards Act, 1890. The custody is provided while considering the welfare of the child and the court make sure that the welfare of the child is confirmed.

#Case: “Roshan Lal and Anr. Versus Gautam Khanna and Ors.,” the Hon’ble Supreme        Corut of India in this Petition for Special Leave to Appeal stated that, the issue of custody of minor children cannot be decided based on rights claimed by the rival parties and the only paramount consideration is the welfare of the children. However, the Punjab and Haryana High Court, in a Habeas Corpus petition directed that the custody of the children shall be handed over to the first respondent who is the father if the children. But the Supreme Court granted the stay on this decision till the final disposal of the custody petition pending in the Family Court of the Agra. The Supreme Court also stated that, whatever may be the outcome of the Custody Petition, it is necessary in the interests of the minor children that they get company of their father at least for a limited period as indicated above. Therefore, it is also for the petitioners to encourage the minor children to maintain very good relationship with their father.

Legal Obligations of Custodial and Non-Custodial Parents:

The legal obligations of the custodial and non-custodial parents vary and are typically defined by the Court orders. Following are some of the legal obligations of the custodial and non-custodial parents: –

  • Custodial Parents: 
  • Meeting Basic Needs: It is the duty of the custodial parents to meet the child’s basic needs including food, shelter, clothing, and a safe living environment. 
  • Facilitating Visitation: The custodial parent are often obliged to facilitate the visitation with the non-custodial parent, as per the orders and decision of the Court. 
  • Stable Living Environment: The custodial parent having the physical custody the child granted by the Court’s order are obliged to provide the stable living environment for the Child.
  • Educational Responsibility: It is also the legal obligation of the custodial parent to ensure that the child receives the best education. The decision regarding the education may include the child’s schooling and participating in their academic progress.
  • Healthcare Responsibility: The custodial parents are also responsible for the good health of the child and they have the authority to make healthcare decisions for the child including medical treatments and routine check-ups.
  • Non-Custodial Parents: 
  • Child Support Payments: One of the primary legal obligations for non-custodial parent is to make court-ordered child support payments. These payments contribute to the financial well-being of the child.
  • Financial Contributions Beyond Child Support: In some of the cases, the non-custodial parents may be required to contribute towards the financial contributions towards the expenses of the child in addition to the expenses beyond the Child support, such as educational and healthcare expenses. 
  • Participating in decision-making: The non-custodial may also have a legal obligation to participate in the decision-making as per the Court order or legal agreement between the parents regarding the major decisions affecting the child, such as education, health, and religious upbringing of the child.
  • Visitation Rights: The non-custodial parent has the legal right to visit his/her child after the divorce or judicial separation, i.e., to spend time with the child as outlined in the Court-ordered visitation schedules.

#In India, visitation rights have been defined by the Hon’ble Supreme Court in “Roxann Sharma versus Arun Sharma,” as, a non-custodial parents or grandparent’s Court ordered privilege of spending time with their child or grandchild who is living with another person, usually the custodial parent. 

The Hon’ble Supreme Court, in number of cases has granted the visitation rights to the non-custodial parents and grandparents, adoptive parents, maternal/paternal uncles and aunts. The prime consideration for visitation rights is the welfare of the child and the proximity of the child and the proximity of the child to the relation concerned. 

  • Complying with the Court Orders: Both custodial as well as the non-custodial parents are legally bound to comply with the court orders and custody agreements. Failing to do so can result in legal consequences.

Legal Recourse for Non-Compliance: 

Enforcing the financial responsibilities and the legal obligations by the parents is one of the critical aspects of the family law. If a parent fails to meet their legal obligations, legal recourse is available. Courts may intervene to enforce child support payments or address other financial discrepancies, emphasizing the importance of understanding and upholding the legal obligations for the rights and well-being of the child. the court may also call to action for parents to prioritize effective communication and adherence to legal obligations for the sake of the children. Seeking legal advice when faced with the non-compliance ensures a fair and just resolution.

#Case: “Geeta Vohra @ Geeta Chopra versus Nitin Chopra” (2020), the contempt petition was filed in the Delhi High Court alleging the wilful violation and beach of the order dated 06.06.2019 passed by the Trial Court granting the visitation rights to the petitioner. The court observed in this matter that, on the account of the pandemic COVID-19, the physically interaction with the child is not possible, but the respondent shall make a sincere endeavour to ensure that the child interacts with the petitioner through a virtual medium, till the physical interaction is not feasible. The Court while disposing off the contempt petition also issues a warning to the respondent not to disobey the directions passed by the Hon’ble Courts. 

 

Foreign Aspect:

The Russian Family Law provides for several important aspects when it comes to the custody of the child. All the matters related to the Russian Child Custody are regulated by the court of law. It is important to know that the parent who obtains the exclusive custody has the right to ask for the financial support under the form of child alimony from the other parent. When it comes to the child alimony, the parents can reach a mutual agreement on the amount of money to be paid by the parent who does not have the custody, or the alimony can be decided by the family law Judge.

In the State of Georgia there are various laws in support of the child support and its enforcement. The government department for child support enforcement is known as the Division of Child Support Services (DCSS). This department provides programme and services for the custodial and non-custodial parents. Its main aim to help children by enforcing the parental responsibility to pay financial support.

Researches indicate that child support and non-custodial parents are predominating among African Americans. In a recent report, it is estimated that 49.2% of African American children live in single parent homes and only about 50% of the non-custodial parents have legal or informal child support agreements. Thus, it puts a lot of pressure on the custodial parent and leave many parents without the sufficient and adequate children support.

The German Law, also assumes that it is generally the child’s best interest to have the contact with both the parents and therefore guarantees the child’s right to contact with his/her parents. In addition, both parents are entitled and obliged to maintain contact with their child for the welfare and interest of their children.

 

Conclusion:

In conclusion, the financial responsibilities, and legal obligations of the custodial as well as non-custodial parents form a comprehensive framework aimed at prioritizing the child’s welfare. In the delicate balance of financial responsibilities between the parents, a clear understanding of the legal obligations is vital. It is important to understand the true meaning of the child support, healthcare, education, and day-to-day expenses in the best interest of the child and his well-being. A comprehensive framework must be designed by the parents by navigating the financial and legal obligations which will promote the child’s well-being and create a stable environment that promotes the financial security and overall development of their children.

 

References:

Featured articles
Quiz for AIBE and Mumbai University students preparation
Non Disclosure Agreement
Music and IPR in BOLLYWOOD
Drafting for a Bollywood Movie
Documentations required for web series – notes
IPR QUIZ

Related articles

All articles