Guardianship, Custody and Visitation rights of children in India is a topic which requires proper understanding . When the question of Children come into the fore  the main consideration is welfare of children which is the primary duty and concern  of the court while granting custody.

Types of Guardians

There are mainly 3 types of guardians one that is :

i) Natural Guardian which is  Father and then the mother .
ii) Testamentary when a guardian is appointed by Will of  the parents and thirdly
iii) Court appointed guardian when  an application is filed for appointing a guardian for the minor. An application for appointment of a guardian is filed under Section 7 of the Guardians and Wards Act, 1890 before the competent court.

Guardianship is an important role that the guardian plays as he is required to take decisions for the child keeping in view the best possible interests which also includes finances , property , education etc.

Custody of children

When  there is reference to Guardianship, Custody and Visitation rights of children in India there is always a case made out for child custody separately in divorce cases.In case of custody when the parents of the minor decide to live together for  various reasons and also when there is a divorce case pending in court , usually when children are with the  mother the father may file an application seeking custody of child/children and  although in most cases if the minor is less than  5 or 6 years old the court does not interfere in child custody  when the child is with the mother. However it all depends on the welfare of the child with whom the child would grow in a healthy environment and all these factors come into play when the Judge himself takes upon himself to interview the child in his chamber.

Visitation rights of children

If the custody of the child is with the mother  then in most cases the father is entitled to visit the child as both have equal rights and are given equal opportunity while the child grows up .   In Divorce cases usually in Mutual consent divorce when both parties have mutually decided to settle the matter ,  child custody depends on the parents who decides to keep sole custody. There are times the mother agrees that the child will remain with the father and she gets visitation rights. In Divorce by Mutual Consent it is  what the parties have decided and court seldom interferes in such situations. However in contested divorce cases the matter is slightly different and the court  will see the pros and cons  while deciding custody. Also there are times Joint custody of children have been accepted  .

Wish of the child in child custody cases

The wish of the child is also  taken into account before deciding whether the sole custody should remain with mother or father.  Ramneesh Pal Singh v. Sugandhi Aggarwal, 2024 SCC OnLine SC 847, Decided on: 08-05-2024 is a landmark judgment which requires reference in this case the Hon’ble Supreme court has taken into account various factors while deciding child custody matter including parental alienation syndrome or  PAS which is when one party has in his custody  the child /children and the party in whose custody  child remains influences the child so much that the minor does not intend to leave the party who has the custody. This is a very important factor which is an allegation of most non custodial parents.  For more information kindly click here.

Conclusion for Guardianship, Custody and Visitation rights of children in India

For more information  regarding filing  Guardianship and custody applications kindly call us at 9873628941. Also you may visit Taps9 Legal Services for more information.