How Do Indian Courts Decide Child Custody? – Get Me a Divorce

Get Me a Divorce

How Do Indian Courts Decide Child Custody?

Suruchi Bhandari** had been in a difficult marriage for over a decade before she finally filed for one. It was always the fate of the kids that had held her back, but she finally had had enough. Like her, so many men and women continue to be in difficult relationships because they don’t want to cause their children mental and psychological trauma. Changing attitudes of the society around them as well as a normalisation of Divorce in the media and popular culture has helped many parents transition to being single parents.

For people who are on the precipice of a divorce or separation, knowing what the courts are likely to take into consideration when deciding child custody becomes important. Contrary to what we see in movies, courts do not base their entire decision on the wants of the child alone. Only children over the age of 9 are asked for a preference. The courts factor in the “welfare of the child” over and above the “rights of the parents”. That means that courts want to evaluate where the child will be safer, better looked after and have access to better healthcare and education in addition to the emotional and mental wellbeing. 

There are two common myths about child custody, one that courts always favour the mother and the second one being that if the woman is a home-maker with no source of income she will not get the custody. With the child’s welfare being paramount, courts have no preference with regards to the gender of the parent; they only decide where the child will be better taken care of. Whether one partner earns more than the other doesn’t factor into the decision making process; only their ability to provide a safe and healthy environment for the child. Even if the mother is a homemaker, the courts will award her the custody and mandate the father to pay alimony and child support. This works both ways, there have been instances where the children are placed with the father and the mother has to contribute towards child support. In cases where both the parents are earning then both are directed by the court to contribute equally to for the child’s expenses.

There are three ways in which the courts deal with custody cases

Sole Custody: In cases where one of the parents is deemed unfit (abusive, substance abuse mental unstable etc.) the remaining parent is given full custody. Depending on the specifics of the case, the court may or may not award child support.

Joint Custody: This is a relatively new concept for India. In this negotiation, while both the parents have custody; one parent has the physical custody while the other has the right to be a regular part of the child’s life with visitation and legally mandated time allocation.

Third Party Custody: In extreme cases when both parents are deemed to be unfit to provide a safe and healthy environment for the child the court appoints a legal guardian who may or may not be a family member.

Child custody is an emotionally difficult issue which results in custody negotiations being long and often nasty. has provided guidance and advice to people who are currently navigating their way forward. Talking to our lawyers can answer your questions and help you devise a plan to ensure that you get a favourable outcome. If you or a loved one need have questions get in touch with us, we are here to help you.

** Names have been changed to protect privacy.

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