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Child Custody in Divorce :Laws and Different Types

Updated on February 18, 2025 01:22:54 PM

Child Custody in a way, everyone knows a little bit about it. But Do you understand what actually child custody means and how many types of child custody are there?

Divorce involves many issues such as alimony payments, child custody, interim maintenance and other related issues. Majority of us find it difficult to understand these terms. In simple terms alimony is the one-time payment that another partner must make at the time of divorce, while interim maintenance is a set amount decided by the court that must be paid at regular intervals to the spouse.

You may now have a clearer picture of two of the three things that have been confusing you. Now let’s move to the third one.

Child Custody in simple words can be described as the decision related to the guidance of children in the divorce processes. In India, Child Custody is the most important as well as complex decision during a divorce. To get into the details of Child Custody, we recommend you to read this article completely.

What is Child Custody?

The guardianship of children after a divorce or separation is known as child custody. Physical custody and legal custody are the two aspects of child custody. When a child is in physical custody, he or she is allowed to live with one of the parents, or both, depending on what type of custody the parents are granted. The other one is legal custody, which entitles the parent to make decisions regarding the child's education, welfare, and other concerns.

These two aspects are not as much straight forward as it looks. Sometimes both the legal and physical custody is allotted to one parent while other is prohibited with any of them, or none of the parents enjoy neither the physical nor the legal custody. These types of child custody and their circumstances will be discussed in more detail later.

But first, we must be aware of the different laws that judge child custody in India.

Laws that Govern Child Custody in India

Understanding the laws related to child custody is an added benefit to your knowledge with regard to this. However when you consult experienced and qualified advocates from Litem, better clarity you get on these matters. Advocates at Litem ease the process of understanding all about divorce and child custody for you. All you have to do is give us a call at +917409697047 or fill the form with basic details.

But for an overview, let us understand all the laws that are related to child custody in India.

Custody Under Hindu Law

Section 26 of Hindu Marriage Act 1955: deals with the maintenance and education of a child. It only applies when both parents follow the Hindu religion. The court has the right to pass judgements and amendments at any point of time related to maintenance of the child and dispose of any pending decree within 60 days of the notice.
Section 38 of Special Marriage Act 1954: deals with the same i.e. maintenance and education of a child. It applies in cases when the marriage between the parents is registered under the Special Marriage Act, or in short if both the parents belong to different religions. Similar to section 26 of the Hindu Marriage Act, 1955 the court holds the power to pass judgements and amendments at any point of time.
Hindu Minority and Guardianship Act 1956: deals with the allowance for custody of the minor child to their biological parents only, provided that the child follows Hindu religion.
Section 26 of Hindu Marriage Act 1955: deals with the maintenance and education of a child. It only applies when both parents follow the Hindu religion. The court has the right to pass judgements and amendments at any point of time related to maintenance of the child and dispose of any pending decree within 60 days of the notice.
Section 38 of Special Marriage Act 1954: deals with the same i.e. maintenance and education of a child. It applies in cases when the marriage between the parents is registered under the Special Marriage Act, or in short if both the parents belong to different religions. Similar to section 26 of the Hindu Marriage Act, 1955 the court holds the power to pass judgements and amendments at any point of time.
Hindu Minority and Guardianship Act 1956: deals with the allowance for custody of the minor child to their biological parents only, provided that the child follows Hindu religion.

Custody Under Muslim Law

The custody of a minor child in Islam is called Hizanat. Under this, only the mother has the right to seek the custody of the child until and unless she is found guilty of any misconduct. In case, the child is a boy, the mother has right to his custody till the age of 7 years and in case of a girl child, till the puberty. After the set time period, the father of the child has custodial rights.

Custody Under Parsi Law

The custody of a child under Parsi law is dealt with by the provisions of the Guardians and Wards Act, 1890. The primary aim is the welfare of the child and can put anything to stake to make sure that the welfare of the child is confirmed.

Different Types of Child Custody in India

Now you all have understood the meaning of child custody, and the laws related to child custody in India. Now it’s time to move to the next important aspect of child custody i.e. types of child custody in India. In India, there are majorly four types or forms of child custody namely physical custody, sole, joint, and legal custody.

Physical Custody: Physical Custody means that the child will reside with one parent while the other parent has a right to visit him/her only. The parent with the right of physical custody is the primary caretaker of the child and is responsible for the child's emotional, medical, and educational needs.

Sole Custody: As the name suggests, in this form of custody only a single or one parent is allowed to have legal and physical custody of the child. In this type, the other parent is deprived of having physical meets with the child. These custody are allotted incases when the other parent is incapable of having any form of responsibility over the child or deemed unfit for the custody of child.

Joint Custody: Likewise sole custody, joint custody also explains itself. In these types of custody physical and legal custody of the child is shared between both the parents. The child spends the same period of time living with each parent.However there are other specific joint custody cases as well where one parent has legal custody over the child but not the physical custody. In these scenarios the child resides with the one parent but the legal rights related to education, future remain in the hand of the other parent. There is one more special arrangement in this where legal right is with any one of the parents whereas child physical custody is shared between them.

Third Party Custody: This is the least favourite type of custody that any parent can wish for their child. In this type of custody, a third party other than the biological father or mother is given custody of the child. This case generally happens when parents refuse to take custody of children or are unable to support him/her.If we try to conclude the above four types then there is child custody in which only one parent is given the child custody whereas the other is only allowed to meet him/her. In the next form everything remains the same, just the other parent is strictly prohibited from meeting the child(ren). The third scenario is when none of the actual parents is allowed to give the child a visit, and the custody is given to any third person. And the last one is where both the parents are allowed and allocated an equal and fixed time for the custody of the child. That means half of the time child custody will be with one parent and the other half will be with the other one.

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Frequently Asked Questions (FAQs)

What decides custody of a child?

In one line, the court decides the custody of a child. But there is much more to it. The court only takes decisions in the favour of the child's welfare, and interest. Court seeks many aspects for this important decision like a safer place for living, emotional support, clothing, well-fed, proper education, child’s preference (only in some situations), and many others.

When can a father get custody of a child?

In accordance with the Hindu Minority and Guardianship Act of 1956, the father of a Hindu child under the age of 18 years and above the age of 5 years is considered to be the child's natural guardian, and only after his death will the child's mother be granted custody.

What makes a mother unfit for custody?

When a parent fails to provide proper guidance, care, or support, they are deemed unfit by law. In addition, parents who abuse, neglect, or abuse substances will be deemed unfit.

At what age can a child decide custody in India?

GAWA (Guardians and Wards Act of 1890) states that a child's preference for custody is considered at or above the age of nine in India.

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