Last updated on April 3, 2019
Divorce can be quite devastating for the family especially for a child who is at a nurturing stage. Child custody is one of the most important and disputed issues which has to be dealt with at the time of a divorce. The Indian Courts give paramount importance to the welfare and interests of the child while deciding which parent should get the custody of the minor child (below 18years). Therefore, the custody of the child is decided by the court on a case to case basis. Generally, both the parents get an access to the child while one parent gets the physical custody. An experienced divorce lawyer is required to argue for the custody of the child. This can be substantiated through this example: If a child lives with his mother in Bangalore and a father in Delhi wants to file for a child custody. Then in this case a divorce lawyer in Bangalore can file a case on behalf of the father as in child custody cases, a case is filed in that jurisdiction in which the child actually resides. So, it gets imperative to hire a lawyer as it is difficult for a common individual to understand the legal jargon.
As child custody is a very sensitive issue and involves the future of the child, it is important to involve a divorce lawyer who has a wide knowledge on this subject. An experienced lawyer can help the parent in the following manner-
- Understanding the Child Custody Law
Law can be quite complex for a layman to understand. Especially child custody law which involves a blend of personal laws (Hindu law, Muslim Law, etc) and secular law (The Guardian and Wards Act, 1890). The family courts try to harmoniously balance the personal law and the secular law in the interest of the child.
- Helping in Deciding the Suitable Custody
Mostly in Child Custody Cases, one parent gets the physical custody of the child while the other parent gets the visitation rights. A divorce lawyer can help in deciding and arguing for the custody which best suits the interest of the child and the parent.
Types of legal Custodies include-
- Sole Custody
In this case, the custody is awarded to a single parent when the other parent is abusive or unfit for taking care of the child. The other parent might get visitation rights in this case.
- Joint Custody
In this case, both the parents take the care of the child on rational basis. The parents take care of the child in turns which maybe fixed for a certain number of days or months. This custody is granted by the court keeping in view the fact, that a child needs love and affection of both the parents.
- Third party Custody
In this case, neither of the biological parent gets the custody. Therefore, a third party gets the custody of the child.
- Legal Custody
This type of custody is different from the physical custody as the parent that gets the legal custody takes all the important decisions of the child. These include decisions regarding his education, health care, etc.
- Understanding the Jurisdiction, Procedure and Documentation
In general, child custody cases are filed in the jurisdiction of the family court/competent court where the child is originally residing. This means that if the child is living with his mother in Bangalore while the father is in Delhi, then the father needs to file for the custody in Bangalore. A divorce lawyer can aid in resolving jurisdictional issues. A legal procedure requires a lot of documentation. So, a divorce lawyer can help in filing an application for custody (where petition already filed) or divorce petition and other documents required.
- Interim Custody and Appeal
An application for interim custody can be filed by the parents for the maintenance of the child while the case is still under process. A divorce lawyer can apply for interim custody on behalf of the parent.
If the parent fails to get the custody of the child in the first round for litigation, then he can file an appeal for the custody or the modification of the existing agreement.
- Collecting Evidences
Evidences aid the court in deciding which parent is suitable for child custody. Some evidences that can support your case include-:
- Income Tax statements for the past 2 or 3 years
- Professional and salary related details
- Birth and family related information
- Details of properties and assets possessed by you and the child
- Marriage details (i.e, marriage photograph, marriage registration certificate, etc.)
A divorce lawyer can help you decide that which evidences will support your argument while contesting for child custody.
- Negotiating Terms of the Parenting Agreement
These days the parenting agreements include innovative terms like Joint Custody where parents share the custody of the child on rotational basis. Other terms can include the right of visitation (daily, weekly, fortnightly, etc) of the non-custodial parent. The financial interest of the child. The terms with respect to the education, health, insurance, property, etc can be negotiated with the help of the lawyer.
Litigation is a cumbersome process and involves huge loss of time and money. People, these days prefer mediation over litigation which is an amicable settlement that takes place outside the court. The divorce lawyer can represent you during the mediation and help you arise at a settlement.
- Clearing Doubts and Counselling
Many pre-conceived notions exist, like at a young age (till the age of 5-7years) the mother gets the custody while at the later age the father gets the custody. This is not exactly true. A divorce lawyer can help in clearing out all these doubts and can also help in contesting the case in a better manner. It is important to understand that Courts decide child custody only on the basis of the welfare and interests of the child. It is not true that if the mother is economically weak then she cannot get the custody of the child or the father cannot get the custody of a young child. All these issues are decided by the court on a case to case basis which can be well argued by a divorce lawyer.
Divorce and custody cases are also emotionally taxing. In some cases, a divorce lawyer can also act as a good counsellor to the parent.
On the basis of the above points, it is clear that a divorce lawyer can better understand a case and can effectively represent a parent in child custody cases. The court procedure and laws can be quite complex which makes it important to hire a lawyer. There is a need to wisely appoint a lawyer as the future of the child completely depends upon this decision.