Custody to Father - Fathers getting Custody and Welfare of Child Concept

I see fathers fighting losing battles to seek custody in courtrooms and mediation centres across India. Many approach me through word-of-mouth and with hope in their hearts. The reason is that I got custody of my child when he was five years old after a fierce battle. Another reason is that I have more exposure and have seen many cases from close and have hand-held many fathers in their child custody battles. The Supreme Court has said that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its broadest sense that the tie of affection cannot be disregarded.

Before I explore how to approach custody matters in India, a little history lesson would help us understand the context.

Traditionally, at Common law, the father was considered the sole guardian of the person and property of the child. However, the Custody of Infants Act of 1839 in the UK – enabled the mother to claim custody over minor children, but the father’s rights remained supreme. In India, the Guardians and Wards Act was enacted in 1890 by the colonial state, which continued the legacy of common law, namely, the supremacy of paternal rights in guardianship and custody of children. Fathers ‘ rights in India have been diluted through a series of judicial decisions and amendments. While the older cases under the GWA unequivocally hold that the father can be deprived of his position as the natural guardian only if found unfit for guardianship, there are many cases where the courts have been exceptions to this principle. The widespread favouring of mothers has been so relentless that in 2004, the Supreme Court noted, “We make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as a parent to be always a preferable to the father to retain custody of the child. In our opinion, such generalisation in favour of the mother should not have been made.”

But before proceeding for what may get father custody of the minors, let’s first get to the reasons why most fathers don’t get custody of the children:

1.  Child Custody is filed by many fathers to settle their other disputes. And I state it even on the cost of being trounced in all groups, a lot of people use child custody battles to put pressure on wives to settle the marital discord. I find it fitting that such people who don’t have custody battle as their priority don’t get the custody of the child/ ren. Even if some fathers want custody of the child, the other family members are not that supportive.
2. Child Custody is filed very late: Many fathers have lost the battle even before the same has begun, and the reason is delay. Some fathers have filed for child custody after three or even more years after separation. The child’s bond is cemented with the mother by then, and courts are reluctant to unsettle the status quo.
3. The Child Custody is focused on things other than ‘Welfare of the Child’. One can see petitions in which little word is spoken about child welfare. The petition is filled with what atrocities the wife has committed on him and his family. The cardinal principle in a child custody battle is “welfare of the child”. These petitions resemble replies to their 498A / Domestic Violence cases or, at best, Divorce Petitions. So when one has not filed the child custody petition, the chances of getting the child custody are slim.

Some fathers do make themselves unfit to be the guardian. Many fathers I have met have gone down under. Alcoholism and Depression are two major killers of their fitness. Beyond that, most have lost their livelihood and quit their jobs to save themselves from Maintenance. One should strive to keep themselves fit to be the guardian before embarking upon the Child Custody battle.

So now, how to go about getting the child custody:

A. One essential point we must remember in all custody battles is that forewarned is forewarned. Suppose one thinks that his kids can be taken away forcibly. He should move fast. Courts at the interim stage rarely change the status quo, and one should take all steps to ensure the kids are not taken away. Thus, the paramount goal should be not to let the child go away with a woman; one should use everything in his power to ensure that. Sometimes, children are kidnapped by wives on the way to school or back; in the initial stages, they don’t depend upon schools to prevent that. If needed, get an injunction against forcible/ illegal removal of the children. Remember, if someone has to fight the child custody battle uphill, let it be the other party. Accurate, in the Domestic Violence Act, the woman can claim the custody of minor children, but even that is an effort for her if you fight spiritedly. And even when the wife has taken away children, and there are chances of her fleeing away with children to some other country, get an injunction against the removal of children from the government.

B. If the children are taken away and all mediums have failed to get the custody back, be proactive and file for the custody of the children. It does not matter whether you have been admitted on Anticipatory Bail. It does not matter whether the case has moved from CAW Cell to Court. You are just making your intentions clear from the very beginning. The sooner you file for custody of the child, the better the chances you will get extended visitations, including overnight ones. It would also help you keep the bond with the child alive.

C Keep yourself fit as a guardian: no drugs, no binge drinking, no leaving jobs. Also, no matter how the money is used, it is in your wife’s hands. Always be willing to provide for the children. Better still, keep sending some money for the maintenance of the child.

I also provide customized drafting solutions, including drafting of Child Custody Case on merits of the case. 

For judgments where fathers have got custody you can look into the judgment section of child custody