RIGHTS OF CUTODY

The right of custody accorded to parents spring from the exercise of parental authority.
Parental authority or patria potestas in Roman Law is the juridical institution whereby
parents rightfully assume control and protection of their unemancipated children to the
extent required by the latters needs. [3] However, the right of a parent to the custody and
control of his child is not an absolute one. [4]

Jurisprudence provides a glimpse as to how the Supreme Court treats the rights of parents
to the custody of their minor children. As held in Sagala-Eslao v. Court of Appeals [5] :

Of considerable importance is the rule long accepted by the courts that the right of parents
to the custody of their minor children is one of the natural rights incident to parenthood," a
right supported by law and sound public policy. The right is an inherent one, which is not
created by the state or decisions of the courts, but derives from the nature of the parental
relationship. [6] (Emphasis supplied)

The father and mother, being the natural guardians of their minor children, are duty-bound
and entitled to keep them in their custody and company. As stated in the Family Code,
[p]ursuant to the natural right and duty of parents over the person and property of their
unemancipated children, parental authority and responsibility shall include the caring for
and rearing them for civic consciousness and efficiency and the development of their moral,
mental and physical character and well-being." [7] Caring for and rearing them, as the
provision states, necessarily entails having custody over their minor children.

This primacy of parental custody also finds support in Article 9 (1) of the Convention on the
Rights of the Child [8] which states that, State parties shall ensure that a child shall not be
separated from his or her parents against their will, except when competent authority
subject to judicial review determine, in accordance with applicable law and procedures, that
such separation is necessary for the best interests of the child.

Parents primarily have custody over their children. All is well and good when the family is
living peacefully. But the problem is when there arise irreconcilable differences between the
parents, such that the family falls apart. In these cases, the law provides for ways to
determine which parent shall have custody of the children. For example, the Family Code
provides that:

Article 49. During the pendency of the action and in the absence of adequate provisions in a
written agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. The Court shall give
paramount consideration to the moral and material welfare of said children and their choice
of the parent with whom they wish to remain as provided to in Title IX. It shall also provide
for appropriate visitation rights of the other parent. [9] (Emphasis supplied)

Another provision [10] states:

Article 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution
of the properties of the spouses, the custody and support of the common children, and the
delivery of their presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings

WHO GETS CUSTODY

A major factor in deciding who gets custody of a child after a divorce is the determination of
who the primary caretaker is. This is the parent who not only does the majority of child care
tasks, such as shuttling to school or cooking meals, but also the one with the closest
emotional bond. If the two parents are able to come to a mutually agreeable decision on
their own, then the courts need not intervene (they will simply approve any reasonable
plan).

However, courts will consider a number of factors to decide who the primary caretaker is
when there is a dispute. Specifically, the court will want to know which parent handles the
following types of parenting tasks:

Bathing, grooming

Planning and cooking meals

Health care decisions

Teaching basic skills, such as reading, and helping with homework

Planning and participating in recreational activities

The Best Interests of the Child

No matter what the court ultimately decides in a custody hearing, it is required to find a
solution that is in the child's best interests. While this may sound vague, it means that all
custody decisions must be made with the goal of promoting the child's happiness, mental
health, emotional development, and security. In other words, a parent's preference should
not take priority over what is actually best for the child. Children over a certain age (but still
minors) may testify on behalf of themselves in most states.

Courts will consider the following factors when determining a child's best interests in a child
custody case:

Physical and mental health of parents

Any special needs the child may have

Need for a stable home environment

Child's own wishes (if old enough to express this)

Interactions and relationships with other members of the household

Evidence of drug or alcohol abuse

Adjustment to the community

Custody in Non-Divorce Cases

Child custody cases are not always linked to divorce. Custody disputes also can arise
between unmarried parents, or among close relatives. There also may be non-divorce cases
involving the visitation rights of grandparents.

As a general rule, most states require that the mother automatically be awarded full
custody of her child if she is unmarried -- unless the father makes an effort to receive
custody as well. But other than that, child custody in non-divorce cases is decided in much
the same way as in divorce cases. In order for a grandparent or other close relative to be
awarded custody of a child, most states have very specific procedures. Typically, the
individual must file a non-parental custody petition, a copy of which must also go to the
child's parents.

Laws of child custody

The court has the right to appoint a guardian for a minors person or property or both under
the Guardians and Wards Act, 1890. A minor is considered to be a person who is generally
under the age of 18; physically and intellectually imperfect and immature and hence
needing someones protection. This law is applicable to all religions and is considered in
conjunction with specific religious laws.

The court considers the following aspects while deciding guardianship:

1. The personal law to which the minor is subject;

2. The age, sex and religion of the minor;

3. The character and capacity of the proposed guardian and his nearness of kin to the minor;

4. The wishes, if any, of a deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property;

5. If the minor is old enough to form an intelligent preference, the court may consider that
preference;

6. The court shall not appoint or declare any person to be a guardian against his will;

7. The courts prefer to keep children together and award custody of both together when the
issue of custody involves two or more siblings;

8. The childs comfort, health, material, intellectual, moral and spiritual welfare.

Generally, the courts give custody of a small child to the mother, and older boys and girls to
the father and mother respectively. For older children, the courts also take into
consideration the wishes of the children. However, none of this is set in stone and if the
opposite party can prove that the parent is unfit to be the legal physical guardian of the
child, then the courts will rule accordingly.

Child Custody Under Hindu Law

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the
age of 5 years is given to the mother. The custody of boys and unmarried daughters is given
to the father. Custody of illegitimate children is given to the mother first and then the father
while the guardianship of a married girl is given to her husband. The Hindu Minority and
Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.

In a custody battle between estranged parents, a minor child, who has not completed five
years of age, shall be allowed to remain with the mother. The Supreme Court
has ruled saying that in such cases the child should not be treated as chattel. It is only the
childs welfare which is the focal point for consideration.

Child Custody Under Muslim Law

Under Muslim personal law, the right to a childs custody is given solely to a mother unless
she is seen as an unfit guardian. This is called the right of hizanat and can be enforced
against any person including the father.

One thing must be kept in mind is that the mothers right of child custody is not absolute
and exists only if such right is beneficial and in the interest of her children. Thus, the welfare
of the children is at the forefront of Muslim law.

Child Custody Under Christian Law

The Christian laws do not have any special mention about child custody rights. Hence
the Indian Divorce Act, 1869, becomes applicable for all matters pertaining to Christian
children and their guardianship. As per Section 41 of this said Act, the courts have the right
to pass orders as to the custody, education and maintenance of Christian children.

In one case, the Supreme Court held that all orders relating to the custody of the minor
wards from their very nature must be considered to be temporary orders made in the
existing circumstances. With the changed conditions and circumstances, including the
passage of time, the Court is entitled to vary such orders if such variation is considered to be
in the interest of the welfare of the ward.

Child Custody Under Parsi Law

The Parsis also do not have any specific laws pertaining to child custody. Hence all such
issues are addressed by the Guardians and Wards Act, 1890. Also, under the Parsi Marriage
and Divorce Act, 1936, the wife can claim for maintenance to support their minor children.
Under this Act, the court has to pass an order within 60 days related to custody of Parsi
children and their guardianship.

In a recent case, both the parents were given custody for sustainable growth of the 12-year-
old boy. The court directed the minor to be in the physical custody of the father from
January 1 to June 30 and from July 1 to December 31 with his mother. Both the parents
were given visitation rights on weekends when the child was with the other parent. The
expenditure of maintenance of the child was to be split equally among the parents.

TYPES OF CHILD CUSTODY

The court has the right to appoint a guardian for a minors person or property or both under
the Guardians and Wards Act, 1890. A minor is considered to be a person who is generally
under the age of 18; physically and intellectually imperfect and immature and hence
needing someones protection. This law is applicable to all religions and is considered in
conjunction with specific religious laws.

The court considers the following aspects while deciding guardianship:

1. The personal law to which the minor is subject;

2. The age, sex and religion of the minor;

3. The character and capacity of the proposed guardian and his nearness of kin to the minor;

4. The wishes, if any, of a deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property;
5. If the minor is old enough to form an intelligent preference, the court may consider that
preference;

6. The court shall not appoint or declare any person to be a guardian against his will;

7. The courts prefer to keep children together and award custody of both together when the
issue of custody involves two or more siblings;

8. The childs comfort, health, material, intellectual, moral and spiritual welfare.

Generally, the courts give custody of a small child to the mother, and older boys and girls to
the father and mother respectively. For older children, the courts also take into
consideration the wishes of the children. However, none of this is set in stone and if the
opposite party can prove that the parent is unfit to be the legal physical guardian of the
child, then the courts will rule accordingly.

Child Custody Under Hindu Law

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the
age of 5 years is given to the mother. The custody of boys and unmarried daughters is given
to the father. Custody of illegitimate children is given to the mother first and then the father
while the guardianship of a married girl is given to her husband. The Hindu Minority and
Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.

In a custody battle between estranged parents, a minor child, who has not completed five
years of age, shall be allowed to remain with the mother. The Supreme Court
has ruled saying that in such cases the child should not be treated as chattel. It is only the
childs welfare which is the focal point for consideration.

Child Custody Under Muslim Law

Under Muslim personal law, the right to a childs custody is given solely to a mother unless
she is seen as an unfit guardian. This is called the right of hizanat and can be enforced
against any person including the father.

One thing must be kept in mind is that the mothers right of child custody is not absolute
and exists only if such right is beneficial and in the interest of her children. Thus, the welfare
of the children is at the forefront of Muslim law.

Child Custody Under Christian Law

The Christian laws do not have any special mention about child custody rights. Hence
the Indian Divorce Act, 1869, becomes applicable for all matters pertaining to Christian
children and their guardianship. As per Section 41 of this said Act, the courts have the right
to pass orders as to the custody, education and maintenance of Christian children.
In one case, the Supreme Court held that all orders relating to the custody of the minor
wards from their very nature must be considered to be temporary orders made in the
existing circumstances. With the changed conditions and circumstances, including the
passage of time, the Court is entitled to vary such orders if such variation is considered to be
in the interest of the welfare of the ward.

Child Custody Under Parsi Law

The Parsis also do not have any specific laws pertaining to child custody. Hence all such
issues are addressed by the Guardians and Wards Act, 1890. Also, under the Parsi Marriage
and Divorce Act, 1936, the wife can claim for maintenance to support their minor children.
Under this Act, the court has to pass an order within 60 days related to custody of Parsi
children and their guardianship.

In a recent case, both the parents were given custody for sustainable growth of the 12-year-
old boy. The court directed the minor to be in the physical custody of the father from
January 1 to June 30 and from July 1 to December 31 with his mother. Both the parents
were given visitation rights on weekends when the child was with the other parent. The
expenditure of maintenance of the child was to be split equally among the parents.