Posted on: May 15, 2022 Posted by: admin Comments: 0

Authors: Kartik Midha, Parth Mittal & Abhimanyu Arya, Students at Manipal University, Jaipur


When a marriage falls apart or ends in divorce, the children born from the union are the ones who suffer the most. Child custody refers to a legal right given by the court to keep and look after the child after separation if the child is a minor i.e., less than 18 years of age. While parents have the right to custody of their children, the family court considers the child’s welfare to be the most important aspect when deciding who obtains the custody of the minor child. The ‘welfare of the child’ being of paramount consideration can be seen in the case of Sheoli Hati v. Somnath Das.  This is known as the doctrine of Parens Patriae which states that the court is entitled to give a verdict considering the child’s welfare above all. Hence, visitation rights are of at most importance to allow the child to bond with both the parents.

The term custody is not defined in any Indian family law, whether secular or religious.The legislation that governs child custody and guardianship is closely interwoven. Guardianship is a broad term that relates to an adult’s rights and powers concerning a minor and their property, whereas custody is a more confined term that refers to the minor’s upbringing and day-to-day care and control.

The family court considers the goal of ensuring the best possible future and welfare for the child when handing over the custodial rights to one of the parents. The four essential factors that the court keeps in mind while giving a decision are:

  1. The custodian guardian must be financially sound
  2. The child should be given proper ethical upbringing and health benefits
  3. Guaranteed safety of the child mentally and physically
  4. Ability to impart quality education


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