Child custody rights explained

The bitter battles of divorce, very often bring into forefront the question of child custody. Custody of a child only implies as to who the child will physically reside with. However, both parents still continue to be the natural guardians.
Child custody issues under Hindu Law are governed by the Hindu Minority and Guardianship Act, 1956 (HMGA) and a secular Act, viz. the Guardians and Wards Act, 1890(GWA). The GWA can be applied irrespective of caste, community or religion, though, the court may, at times, consider the personal law of the parties to the suit. Here, it is important to note that the provisions of the HMGA are not in derogation to those of the GWA. Infact, the courts may make a harmonious construction while deciding a case.
According to the Muslim Law, the first and foremost right for the custody of children belongs to the mother and she cannot be deprived of her right as long as she is not found guilty of misconduct or wilful neglect. This right can be held against the father or any other person. The father’s right of Hizanat is applicable under all Muslim schools of law.
Christian Law per se does not have any particular provision for custody of child, but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children.
A child, below the age of 18 years, must have a legal guardian and for that matter, the court decides on the issue of child custody, when parents divorce. While settling a dispute regarding child custody, the court gives utmost priority to the best interests of the child. A neglecting parent is thus never handed the custody though he/she may have a sound economic stature.
The custodial parent viz. the parent who wins the custody of the child, will be primarily responsible for the overall wellbeing of the child. The other parent would not be entirely cut off from all ties with the child and would have visitation rights.
The earning capacity of the parent is not the sole criterion for determining custody of child, but, the capacity to provide a safe and secure atmosphere sure does. A non-earning mother will certainly not be disqualified from contesting for custody but, the earning father will be asked to provide economic support to the child.
While the mother is the preferred custodial parent when the child is of tender age, once the child attains a discernible age, his/her wishes would be taken into consideration while settling the matter. The belief that once a child attains a particular age, the father shall have uncontested rights, is utterly wrong.
Joint custody is a concept that does not exist in the statutes, but has evolved gradually while negotiating divorce settlements. In this case, both parents will have legal custody of the child but, only one parent will have the physical custody and will be the primary caretaker. Access to the non-custodial parent could be daily, weekly, fortnightly, monthly or even for a few hours in a day. It depends wholly on the convenience of the child and the non-custodial parent.
Property in the name of the child with either parent as the guardian can also be given as a lumpsum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not stand as a hindrance to an amicable settlement. Here also the best interest of the child would be looked into.