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What is the difference between legal and physical custody in India?

Types of Custody in India: Legal vs Physical

There are two types of child custody in India: legal custody and physical custody.

Legal custody refers to a parent’s or guardian’s right to make major decisions for their child, such as education, healthcare, and religion. Physical custody, on the other hand, refers to the actual living arrangements of the child and which parent or guardian the child lives with.

According to the most recent National Crime Records Bureau statistics, there were 3,206 reported cases of custody disputes in India in 2019. One thousand two hundred of these cases concerned child custody.

In most cases, the court makes custody decisions based on what is best for the child. When making a decision, the court may also consider the child’s age, gender, and overall well-being.

Understanding Legal Custody in India

Legal custody is the legal authority granted to a parent or guardian to make decisions on behalf of a child, such as those concerning education, healthcare, religion, and overall well-being.

A number of statutes govern legal custody in India, including the Hindu Minority and Guardianship Act, the Guardians and Wards Act, and the Indian Divorce Act. Legal custody of a child may be granted to one or both parents or a legal guardian depending on the circumstances of the case.

According to the 2011 Census of India, there were over 472 million children under the age of 18, with approximately 25% living in single-parent households. In such cases, the issue of legal custody becomes especially important.

Legal custody should not be confused with physical custody, which refers to where the child is kept. While legal custody may be granted to one parent or guardian, physical custody may be granted to the other parent.

Understanding legal custody in India is critical because it can have serious consequences for a child’s upbringing and well-being. Parents or guardians who have legal custody of their children must make important decisions that affect their children’s future and must act in their best interests.

Understanding Physical Custody in India

In India, physical custody refers to the legal arrangement in which a child lives with one parent following the separation or divorce of their parents. In such cases, the parent with physical custody is responsible for meeting the child’s basic needs, such as education, healthcare, and other necessities.

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According to statistics, the majority of custody cases in India are awarded to the mother, as Indian courts tend to prioritise the welfare of the child. However, there has been a growing trend in recent years towards joint physical custody, in which both parents share equal responsibility for the child’s upbringing.

It is important to note that physical custody arrangements vary depending on the specific circumstances of each case and may change as the child grows older. The ultimate goal of physical custody arrangements is to ensure that the child’s best interests are always considered.

Factors Considered in Granting Custody in India

In India, custody of a child is granted based on several factors, some of which include:

  • Age and gender of the child: Typically, the custody of a child below the age of five is granted to the mother, while the custody of older children may be shared between both parents.
  • Child’s preference: If the child is old enough to express their preference, their opinion may be considered while granting custody.
  • Financial stability: The parent who is financially stable and capable of providing for the child’s needs is more likely to be granted custody.
  • Mental and physical health of the parents: The mental and physical health of both parents is taken into consideration while granting custody.
  • The character of the parents: The character and conduct of the parents is evaluated, especially if there are allegations of domestic violence, abuse, or neglect.
  • The living conditions of the parents: The living conditions of the parents, including their employment status, housing, and access to basic amenities, are considered.
  • The child’s education: The parent who can provide the child with better educational opportunities is more likely to be granted custody.
  • Religious and cultural background: The religious and cultural background of the parents and the child may also be taken into account while granting custody.

How Custody Battles are Resolved in Indian Courts

Custody battles in Indian courts are disputes between parents over custody of their children. In such cases, the court determines which parent is best suited to care for the child(ren).

Custody disputes are commonly resolved through legal proceedings in family courts in India. According to a Ministry of Law and Justice report, there were 1,06,958 cases pending in Indian family courts as of December 2020.

When making custody decisions, the Indian legal system prioritises the child’s welfare and best interests. The court takes into account a number of factors, including the child’s age, health, educational needs, and emotional well-being. It also considers the parents’ financial, social, and cultural backgrounds.

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In many cases, the court will appoint a mediator to help the parties negotiate and reach a mutually acceptable solution. If the parties cannot reach an agreement, the court will hold a trial and render a decision.

The Role of Parenting Plans in Custody Arrangements in India

Parenting plans are agreements made between parents that outline the arrangements for their children’s care and upbringing following separation or divorce. Parenting plans are important in custody arrangements in India because they help ensure that the child’s best interests are prioritised.

According to a Ministry of Women and Child Development report, in India, custody of children is generally granted to the mother, unless she is deemed unfit. However, there is a growing trend towards shared parenting arrangements, where both parents have equal responsibility for the child’s upbringing.

Parenting plans, which outline details such as the child’s living arrangements, education, healthcare, and communication with each parent, can help facilitate shared parenting. They can also address potential conflicts, such as holidays and special occasions, to ensure that both parents are involved in the lives of their children.

According to research, parenting plans can have positive outcomes for both children and parents, such as improved co-parenting relationships, reduced conflict, and better child adjustment. According to a study published in the Journal of Divorce & Remarriage, children in shared parenting arrangements outperformed those in sole custody arrangements in terms of academic and behavioural outcomes.

Two women trying to get custody of child in court Vector Two Women Trying to Get Custody of Child in Court child custody battle stock illustrations

Joint Custody vs Sole Custody: Which is Better for the Child?

When parents divorce or separate, one of the most important decisions they must make is child custody arrangements. Joint custody and sole custody are the two main types of custody.

Joint custody means that both parents share decision-making authority over their child’s upbringing, such as education and healthcare. It also implies that the child spends a lot of time with both parents.

Sole custody, on the other hand, means that only one parent has the legal authority to make decisions about the child’s upbringing, and the child primarily resides with that parent. Although the other parent has visitation rights, they do not share decision-making authority.

There are numerous factors to consider when determining which type of custody arrangement is best for the child. However, studies have shown that children with joint custody have better outcomes in terms of mental health, behaviour, and academic performance than those with sole custody.

A study conducted by the American Psychological Association, for example, discovered that children with joint custody had fewer behavioural problems and higher self-esteem than those with sole custody. Another study published in the Journal of Family Psychology discovered that children with joint custody performed better academically and were less likely to engage in risky behaviour than those with sole custody.

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However, it is important to note that joint custody may not be appropriate or feasible in all cases, particularly if there are concerns about the child’s safety or well-being. Finally, the best custody arrangement will be determined by the unique circumstances of each family and the child’s needs.

The Importance of Communication in Co-Parenting After Divorce in India

When parents divorce and must raise their children together, communication is critical. This is especially true in India, where divorce rates are on the rise. According to the National Statistical Office (NSO), the divorce rate in India increased by 5.5% between 2017 and 2018.

Co-parenting entails making joint decisions and working together to raise children, even if the parents are no longer married. Co-parenting requires effective communication. Without it, misunderstandings can occur, and children may suffer as a result.

Co-parenting can be difficult in India due to a variety of factors, including cultural norms and traditional gender roles. However, studies have shown that effective communication can help overcome these obstacles. In an Indian survey of divorced parents, 80% felt that good communication was essential for co-parenting.

The Impact of Custody Battles on Children in India

Custody battles can have a negative impact on the well-being of children in India. Indeed, studies have shown that children who are subjected to high-conflict custody battles are more likely to develop emotional and behavioural issues.

According to a study conducted by the Delhi-based NGO HAQ: Centre for Child Rights, approximately 3,500 child custody cases were pending in various courts in Delhi in 2018. Long-drawn court battles can be stressful for children, affecting their academic performance as well as their mental health.

Children caught up in custody battles may experience feelings of guilt, anger, anxiety, and confusion. They may have difficulty forming healthy relationships and trusting others in the future.

As a result, it is critical for parents to prioritise their children’s well-being during custody battles and work towards a solution that is in the best interests of the child. This could include seeking counselling or mediation to assist both parents in reaching a mutually beneficial agreement.

Alternative Dispute Resolution in Custody Cases in India.

Alternative Dispute Resolution (ADR) is a method for resolving custody disputes outside of court in India. To reach an agreement on custody and visitation, parents work with a neutral third party, such as a mediator or arbitrator, in ADR.

ADR is gaining popularity in India because it is less expensive and takes less time than going to court. According to a study conducted by the Ministry of Women and Child Development, ADR was used to resolve approximately 10% of custody cases in India in 2018.

ADR can also lead to better outcomes for children as parents are more likely to come up with a parenting plan that works for everyone involved. Furthermore, ADR can assist parents in maintaining a better relationship with one another, which can benefit their children in the long run.

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