You must have read my write up on divorce on divorce by now, if you haven’t, please do, https://primlegal.com/lets-talk-divorce-pt-1/,
During divorce proceedings, one of the questions the Judge usually asks the couple is if there are children in the marriage. If yes, the ages of the children and the plans of the couple for the welfare of the child(ren) are taken into consideration. The reason why the above question is asked is obvious, after the divorce, the child(ren) must go with one parent. This is usually painful for both the parents and the child(ren) in question, especially when the child is quiet young. Considering the long-term impact of divorces on children, the court has a duty to ensure that its decisions as to custody does not negatively affect the child(ren).
So, the question of “Who keeps our child(ren)?” always comes up. At times like these, the child(ren)’s welfare is of utmost importance to the court.
Apart from divorce proceedings, the question of “who keeps our child?” also comes to mind of parents of children born out of wedlock. The High Court likewise has the power to make orders as to who gets custody of those children.
I would say, it is commonplace and disheartening to see parents use their children as weapons in court battles. Both parents are almost always driven by the desire to take the child from the other, and use the children as a means of causing emotional pain to the other. No good parent wants to be separated from his/her child, and thus it is easy for one parent to intentionally hide a child, just to cause untold pain to the other parent. I personally have had a few of these cases, but one lives rent free in my head till this date. A mother taking the only child of the affair and sending the child to an orphanage home owned by a reverend father, which was literally situate out of town, just to ensure that the father never saw the child. The experience was quiet crazy. I can boldly say that my office went through hell to locate the child and explain the situation to the authorities of the Orphanage home.
Children should never bear the grunt of the separation of their parents, neither should they be used as a means to an end.
In non-divorce proceedings, that is for children born out of wedlock, whose parents were never married and live apart, either parent can apply to the family court of the state he/she or the child is resident for an order granting him or her custody of the child. Please note, the grant of custody of a child does not translate to one parent becoming the sole parent of the child at the expense of the other.
Typically, the court order which grants custody lays out the terms of custody (more or less like rules and regulations that must be obeyed) and usually caters for issues such as visits, short-term stays/holidays, and allowances for the care of the child or children. This means that the fact that the court grants custody of the child(ren) to the mother, does not mean that she can deny the father access to the child(ren) nor does it mean that he does not have visiting rights. It also doesn’t mean that she would be solely financially responsible for the upkeep of the child(ren).
The decision to grant one parent absolute custody is usually taken after the court has taken consideration of the best interests of the child and deems it necessary that that parent be granted custody.
I know deep down your heart you just want to know what factors the court would consider in granting custody of a child to a parent.
If the application for custody is not contested, the court will grant the prayer of the parent seeking custody. This majorly happens when a particular parent wants custody, and the other parent is uninterested in having custody of the child. However, that is not always the case as a tussle, if not a war, always happens.
Where custody is disputed, the Court is forced to consider certain factors. The major factor considered by the court is the welfare of the child in question. The other factors can include the age of the child (if very tender, the child might, be given to the mother), the conduct of the parent (if any of the parent can prove irresponsibility, negligence, bad behaviour, moral decadence or bad criminal record on the part of the other parent, such parent might be denied custody), sex of the child (typically, male children are given to fathers, as male parents are generally deemed to be in the best position to raise them, and vice versa), the parent that can be seen to have the time to attend to a child (a working-class parent who has little or no time for him/herself, might not be granted custody. It would only be normal to deduce that (s)he might not have time to administer care to the child), the health of the child (some children have special health conditions, and the court has to look at which parent at that time would be able to handle and care for the child), the environment of each parent (you do not expect the court to allow a child to stay with a parent who lives in an environment that is not conducive for the child), the parent the child is most free with, and on and on. The list can be endless, but be rest assured, that what the court would always look out for is the best interest and welfare of that child. So different circumstances in different cases could affect the decision of the court.
(To be continued……)