Child custody case: the law, the steps and what the court looks at

What it is

A child custody case asks the court to decide who a child will live with, and how much time the other parent will have with the child. The parent the child lives with has custody; the other parent's time with the child is visitation or access. A guardian is the person with legal authority over the child's person, property or both; a parent can be a guardian without having day-to-day custody.

A minor is a child under eighteen (Hindu Minority and Guardianship Act, Section 4).

When it applies

You need a custody case when you and the child's other parent cannot agree on where the child lives or on visits, when one parent has taken the child and stopped contact, or when an existing arrangement is no longer working for the child. If you have just separated and have not yet tried to agree, start with Custody of a child after separation.

The laws. Which law applies depends on the family and on whether another case is already running:

• Inside a pending matrimonial case. The court hearing a divorce, judicial separation or similar case can make interim custody orders, provide for custody in the decree, and change those orders later: Hindu Marriage Act, 1955, Section 26; Special Marriage Act, 1954, Section 38; Divorce Act, 1869, Sections 41, 43 and 44 (Christians); Parsi Marriage and Divorce Act, 1936, Section 49.
• A separate custody or guardianship application. The Guardians and Wards Act, 1890 applies to children of every religion. The court can appoint or declare a guardian of the child's person where that is for the child's welfare (Section 7), make temporary custody orders and order the child to be produced (Section 12), and order a child removed from a guardian's custody to be returned (Section 25).
• For Hindu children, the Hindu Minority and Guardianship Act, 1956 applies alongside it. Section 6 names the father, and after him the mother, as natural guardian of a boy or unmarried girl, and says custody of a child under five shall ordinarily be with the mother. Section 13 makes the welfare of the minor the paramount consideration, and says no one is entitled to guardianship if it will not be for the child's welfare.
• In a domestic violence case, the Magistrate can grant temporary custody of the children to the woman who applies, set visiting arrangements, and must refuse visits that may harm the child (Domestic Violence Act, 2005, Section 21).

What the court looks at. Section 17 of the Guardians and Wards Act tells the court to be guided by the child's welfare, consistent with the law the child is subject to. It considers the child's age, sex and religion; the character and capacity of the person seeking custody and their nearness of kin; the wishes of a deceased parent, if any; and the existing relationship between that person and the child. If the child is old enough to form an intelligent preference, the court may consider it. Courts have held that the child's welfare overrides the rights of either parent, and they look at the whole picture: who has cared for the child, stability, schooling, health, each parent's home and support, and the child's bond with each parent.

The steps and the timeline

1. Choose the route and the court. If a matrimonial case is pending, the custody application is filed in it. Otherwise, the application is filed in the Family Court (Family Courts Act, Section 7) or district court where the child ordinarily resides (Guardians and Wards Act, Section 9).

2. The petition. Under Section 10 of the Guardians and Wards Act, the petition sets out the child's name, sex, religion, date of birth and ordinary residence; who has custody now; the child's near relatives; any earlier application about the child; and the reasons for the application. Your advocate adds the facts about the child's care and your proposed arrangement.

3. Interim custody and visits. Ask at the start for temporary orders. The court can direct the person who has the child to produce them, and make temporary custody arrangements while the case runs (Guardians and Wards Act, Section 12; Hindu Marriage Act, Section 26).

4. Notice and reply. The other parent is served and files a reply.

5. Counselling and settlement. A Family Court must first try to help the parties settle (Family Courts Act, Section 9). Expect counselling or mediation. Many custody cases end in an agreed parenting arrangement recorded by the court.

6. The child and the experts. The judge may speak to the child, usually privately. The Family Court can take the help of a counsellor, a welfare expert or a medical expert (Family Courts Act, Section 12).

7. Evidence and order. If there is no settlement, both parents give evidence and are cross-examined. The court then makes its order on custody, visitation and any conditions, such as holidays, phone calls, schooling or travel.

8. Afterwards. A guardian appointed or declared by the court cannot take the child outside the court's jurisdiction without its leave (Guardians and Wards Act, Section 26). Custody orders can be changed when circumstances change. An appeal from a Family Court's final order goes to the High Court within thirty days (Family Courts Act, Section 19); the Guardians and Wards Act lists the orders under it that can be appealed (Section 47).

How long. It varies with the court, whether interim orders are contested, and whether the parents settle. Interim arrangements are often made within the first few hearings; ask your advocate what to expect in your court.

Documents needed

• The child's birth certificate, school records, report cards and medical records.
• Proof of the marriage, or of parentage.
• Your identity and address proof, and proof of where the child lives.
• A written account of who has cared for the child: school runs, doctor visits, daily routine.
• A record of visits, missed visits and refusals, with dates, and messages with the other parent.
• Proof of your income, work hours and the support you have at home.
• Your proposed arrangement for the child: home, school, time with the other parent.
• Copies of any other case, complaint or order between you and the other parent.

Typical cost

The cost of a custody case varies with the court, how many hearings it needs, whether interim orders are contested, and whether there are appeals. The court fee is set by each state. The advocate who takes your matter quotes their own fee before you pay anything; eMunshi does not set it.

What the advocate does

• Tells you which law and which court apply, and whether to file in a pending case or separately.
• Drafts the petition and the application for interim custody and visits.
• Prepares you for counselling and for the judge's interaction with the child, without coaching the child.
• Gathers evidence of the child's care and needs, and cross-examines the other side.
• Negotiates a workable parenting arrangement where possible, and applies to enforce or change the order later.

The self-serve document that comes before it

There is no self-serve document for a custody case; the petition depends on your family's facts. If you and the other parent agree on everything and are divorcing by consent, the custody arrangement can be written into the mutual consent petition at ₹4,999, checked by a panel advocate. If you want advice before deciding, a 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate.