When can father get full, partial custody of a child in case of divorce? – The Economic Times

Clipped from: https://economictimes.indiatimes.com/wealth/legal/will/money-relationships-when-can-father-get-full-partial-custody-of-a-child-in-case-of-divorce/articleshow/87815436.cms

Divorce can be one of the most traumatic developments not only for the husband and wife, but also for children, if any. It’s worse if there is no mutual consent over the child’s custody. In case of acrimony between the spouses over the child’s custody, the family court decides who gets to keep the child as per the Guardians and Wards Act, 1890. If there is a conflict with the personal laws, the court gives primacy to the interests and welfare of the child over the parents.

Typically, if the child is below five years old, the mother gets to keep the child, while a child over nine years old is asked by the court for his preference. Older boys usually get to be with the father, while older girls stay with their mothers. In reality, fathers usually find it difficult to get a child’s custody, but there are circumstances under which the father can claim legal rights over his child.

Father’s name on child’s birth certificate
The presence of father’s name on the child’s birth certificate has a big impact on whether he gets custodial rights to the child. If the birth certificate carries the name of father, whether he is the biological father or not, the court will be inclined to grant him legal custodial rights, either partial or full, over the child. If, on the other hand, his name is absent from the certificate, there is little likelihood of his getting any rights, visitation or custodial, over the child. In case a person is the child’s biological father but his name is somehow missing from the birth certificate, he will have to undertake a paternity test to prove that he is indeed the father before the court agrees to grant him any custodial rights over the child.

Conditions under which father gets custody
Though mother is considered the better choice for a child, especially one below five years old, there are conditions under which the custodial rights can be claimed by the father. These include the following:

  • If the mother herself gives up any claim to the child, the father can be given the child’s custody.
  • If the mother is a convict, the child’s custody will automatically go to the father.
  • If the mother is unable to take care of the child herself and the kid is being neglected, the custody can be granted to the father.
  • If the child is more than 13 years old and expresses his wish to reside with his father, the court can grant custody to the father.
  • If the mother has a mental illness which renders her incapable of taking care of the child, the father gets the custody.
  • If the mother has a shady reputation or poor character which can impact the child and jeopardise his upbringing or cause harm to the child in any way, the court can give the child’s custody to the father.
  • If the father can show that the mother is financially incapable of taking care of the child or her financial capacity can affect his upbringing, the court can favour the father as the child’s custodian.
  • If the father can prove to the court that the mother’s background is such that it can adversely affect the child’s physical and mental growth, or can prove fatal for him, or impact his future upbringing negatively, the court can grant custody to the father.

Where the child resides
If the child has been living with the father for a long period and the mother has been missing, the court may grant custody to the father.

If you have a wealth whine, write to us…
All of us have been in a financial dilemma when it comes to relationships. How do you say no to a friend who wants you to invest in his new business venture? Should you take a loan from your married brother? Are you concerned about your wife’s impulse buying? If you have any such concerns that are hard to resolve, write in to us at etwealth@timesgroup.com with ‘Wealth Whines’ as the subject.

The advice in this column is not from a licensed healthcare professional and should not be construed as psychological counselling, therapy or medical advice. ET Wealth and the writer will not be responsible for the outcome of the suggestions made in the column.

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