Custody of a child after separation: what to do first
You and your child's other parent have separated. Who has custody until a court decides, what courts look at, how to agree a parenting plan, and when to go to court.
- ✓Separation does not by itself take away either parent's rights. Until you agree or a court decides, both of you remain the child's parents, and the child usually stays where they are living now.
- ✓When parents cannot agree, the court decides on one question above all: the welfare of the child. No parent is automatically entitled to custody. For a Hindu child under five, the law says custody shall ordinarily be with the mother.
- ✓Most custody arrangements are agreed, not ordered. Keep the child's routine steady, keep records, never use the child as a messenger, and go to court only when agreement fails or the child is at risk.
What has probably happened
You and your child's other parent have separated, or are about to. Perhaps one of you has moved out with the child. Perhaps you are living apart and cannot agree on where the child should live, how often the other parent should see them, or which school they should go to. Or contact has stopped altogether.
A few words the law uses:
- Custody — who the child lives with day to day.
- Visitation or access — the time the other parent spends with the child.
- Guardian — the person with legal authority over the child's person, property or both. A parent is usually the guardian; custody and guardianship are not the same thing.
- Minor — a child under eighteen (Hindu Minority and Guardianship Act, Section 4).
The rule that decides everything: the child's welfare
Whatever your religion, when parents cannot agree, the court asks one question above all: what is best for this child?
- For Hindu children, Section 13 of the Hindu Minority and Guardianship Act, 1956 says the welfare of the minor is the paramount consideration, and no one is entitled to guardianship if the court thinks it will not be for the child's welfare.
- For all children, Section 17 of the Guardians and Wards Act, 1890 tells the court to be guided by the child's welfare, consistent with the law the child is subject to. It looks at the child's age, sex and religion, the character and capacity of the person who wants custody, their closeness to the child, and the child's existing relationship with them. If the child is old enough, the court may consider the child's own preference.
Two rules from Section 6 of the Hindu Minority and Guardianship Act are often misunderstood. It names the father, and after him the mother, as the natural guardian of a Hindu boy or unmarried girl. It also says custody of a child under five shall ordinarily be with the mother. Neither rule overrides the child's welfare.
Courts commonly give one parent day-to-day custody and the other regular visitation, so that the child keeps both parents. Courts have held that a child has a right to the love and company of both parents, and that custody is not a reward or punishment for either.
What to do, step by step
First — if your child or you are not safe, act on that now. A woman facing domestic violence can ask the Magistrate for temporary custody of the children under Section 21 of the Domestic Violence Act, 2005, and the Magistrate must refuse visits by the other parent if they may harm the child. See Domestic violence application.
Week 1 — keep the child's life steady. Same home if possible, same school, same routine. Courts look at the child's settled life, and children cope better with less change.
Week 1 — start a record. Note where the child lives, who does the school run, doctor visits, homework and bedtime, and every visit, missed visit or refusal, with dates. Keep messages. Do not record the child or coach them.
Weeks 1 to 4 — try to agree a parenting plan. Write it down: where the child lives, weekday and weekend time with the other parent, holidays and festivals, phone and video calls, school and medical decisions, and how you will talk about changes. A Family Court must try to help parents settle (Family Courts Act, Section 9), so a sensible written plan is useful even if you end up in court. If you are also divorcing by consent, the plan can go into the mutual consent petition.
Sort out money separately. Maintenance for the child is a separate claim from custody. See Maintenance: who can claim.
If you cannot agree — go to court. Where a divorce or other matrimonial case is pending, ask for custody orders in that case (Hindu Marriage Act, Section 26; Special Marriage Act, Section 38; Divorce Act, Section 43; Parsi Marriage and Divorce Act, Section 49). Otherwise, apply to the Family Court (Family Courts Act, Section 7) under the Guardians and Wards Act, in the place where the child ordinarily lives (Section 9). The court can make temporary custody orders while the case runs (Section 12).
What happens next
The court process is in Child custody. Expect counselling or mediation first, interim arrangements for custody and visits, and hearings where the court may speak to the child privately. A Family Court can take the help of a counsellor or welfare expert (Family Courts Act, Section 12). Custody orders can be changed later as the child grows or circumstances change.
Timeline and costs
| When | What | Who pays |
|---|---|---|
| Now | Keep routine steady, start a record | — |
| First weeks | Try to agree a written parenting plan | — |
| If agreement fails | Advice on your court, interim orders and evidence | A call with a senior advocate from our panel: ₹10,000 for 30 minutes |
| Filing | Custody application, with a request for interim orders | Court fee (set by your state) and the advocate's fee, which they quote first |
Documents to keep handy
- The child's birth certificate, school records and medical records.
- Your identity and address proof, and proof of where the child lives.
- Your record of who does what for the child, and of visits and refusals.
- Messages with the other parent about the child.
- Proof of your income, work hours and who helps you with care.
- Copies of any case, complaint or order between you and the other parent.
Mistakes that sink people
- Taking or hiding the child to gain an advantage. Courts look at each parent's conduct towards the child.
- Stopping the other parent's contact without a safety reason. It can count against you.
- Speaking badly of the other parent to or in front of the child, or using the child to carry messages.
- Coaching the child on what to say to the judge.
- Stopping maintenance because contact is denied. They are separate.
- Moving city or school without agreement or a court order.
When you want advice first
Custody is decided on your family's facts. A 30-minute call with an independent advocate from our panel starts at ₹999; for a disputed custody case, a senior advocate is usually the right choice.
Questions people ask
Does the mother always get custody?
No. For Hindu children, Section 6 of the Hindu Minority and Guardianship Act says custody of a child under five shall ordinarily be with the mother. Beyond that, no parent has an automatic right. The court decides on the welfare of the child (Hindu Minority and Guardianship Act, Section 13; Guardians and Wards Act, Section 17).
Isn't the father the natural guardian?
For a Hindu boy or unmarried girl, Section 6 of the Hindu Minority and Guardianship Act names the father, and after him the mother, as natural guardian. But Section 13 says the welfare of the minor is the paramount consideration, and no one is entitled to guardianship if the court thinks it will not be for the child's welfare. Courts have held that 'after him' does not shut the mother out while the father is alive.
Will the court ask my child what they want?
It may. The Guardians and Wards Act (Section 17) lets the court consider the preference of a child old enough to form an intelligent preference, and the Hindu Marriage Act (Section 26) asks for orders consistent with the child's wishes wherever possible. The weight given to it depends on the child's age and maturity.
My spouse took our child and won't let me see them. What can I do?
Write down what happened and when. Ask, calmly and in writing, for contact. If that fails, you can apply to the Family Court for custody or visitation; the court can make temporary orders and order the child to be produced before it (Guardians and Wards Act, Section 12). If a divorce or other matrimonial case is already pending, apply in that case (Hindu Marriage Act, Section 26). An advocate can tell you how urgent your situation is.
Can I move to another city with the child?
If there is no court order, talk to the other parent first and try to agree in writing. If a court has appointed or declared you guardian, you cannot take the child outside that court's jurisdiction without its leave (Guardians and Wards Act, Section 26). Moving without agreement can count against you.
Can I stop paying maintenance if I'm not allowed to see my child?
No. Custody and maintenance are separate questions. A parent must maintain their child whatever the custody arrangement. If contact is being denied, ask the court for visitation; do not stop payments.
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