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How to file Judicial Custody of a Child

Whenever a couple decides to go for divorce due to any reason of the failure of their marriage, the most suffered one are the kids and this becomes more intense as well as difficult because a child who comes from a broken marriage needs a different kind of upbringing.

By: Sanya Barman, 3rd Year, BLS LLB, Rizvi Law College, Mumbai.


Child custody is a process of caring and maintenance of the child who is less than 18 years by the custodial parent who has been granted rights by the court after looking at the set parameters such as financial security, understanding with child, the environment in the house, etc. The custodial parent has all the right to decide the best in the interest of the child with respect to education, lifestyle, medical and emotional needs, etc. while the non-custodial parent holds right to meet the child only.

But in many cases both the parents are given right to decide about their child interest but the physical custody is only given to one parent. This type of cases mostly take place when the divorce is takes place with mutual consent.

Types of Child Custody

  • Physical Custody- In this type of custody, child lives with the custodial parent while the other parent can only meet the child during the time duration set by the court.
  • Joint-Physical Custody- In this custody both parent have the physical custody of the child, child lives with both the parent for a significant time period. In such cases both parent have equal right on their child.
  • Sole Custody- In this custody the entire right to live with child is with the one parent only. This happens if the court finds out that the other parent is abusive, alcoholic, and violent or is a bad influence on child.
  • Third Party Custody- In this Custody, none of the biological parent get the custody but the third party gets it.

As per Hindu Minority And Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of their mother as they need proper care emotional as well as physical which only a mother can give.

The custody of the boy or unmarried girl below the age of 18 and above the age of 5 shall be given to the father of the child and only after his death shall be given to the mother.

If the child is illegitimate then the custody shall be given to the mother.

If the parents are not willingly to take the custody of child or the court finds that for the betterment of child the custody must not be given to them only in that case the custody will be given to the third party. 

Factors that affect the custody of child 

Whenever the court has to decide the custody these factors are looked after for the betterment of child:

  • Mental, physical as well as emotional stability of the parent to make legal decision on the behalf of child.
  • Relationship bond between child and parent.
  • History of abuse, neglect or violence.
  • Financial status of both the parents are compared
  • Wishes of a child, in the case where a child can make an opinion of its own.

Conditions in which child custody is given to father

  • If mother is willingly giving the custody to father.
  • If the mother is mentally unfit to look after the child.
  • If the child is 13 above and desires to stay with his father.
  • If the court finds out that the mother is of immoral character.
  • If father can prove the court that mother is financially incapable to take care of child and he is financially capable to give best to his child.
  • If mother is a convict itself.

Child Custody Laws in India

  1. Guardian and Wards Act, 1890
  2. Section 26 of the Hindu Marriage Act, 1955
  3. Custody under Muslim Law
  4. Custody under Hindu Law
  5. Section 38 of Special Marriage Act, 1958
  6. Hindu Adoption & Maintenance Act, 1956
  7. Hindu Minority and Guardianship Act, 1956

A child custody cases can be filed in the jurisdiction of the family court where the minor child resides.

Procedure to file Child Custody Case

A petition for child custody regarding the appointment of natural or legal guardian of minor starts with the filling of the petition by the spouse seeking child custody.

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