Child custody refers to the right bestowed upon a parent to keep the child in their care and custody and to look after them. Over the years, there is a shift from custody and access being the right of a parent to being the right of a child. In India, while the decision of child custody is made, only the paramount interest of the child is considered prior to any other factors and facts presented before the court. These interests include the financial capabilities of the parent seeking custody, the living environment that he/ she can provide for the child, the kind of education that the child will receive in their guardianship, and most importantly whether or not the child wants to stay with the parent asking for custody of the child. Furthermore, if the child is being exposed to any immoral acts carried out by the parent in whose custody the child is, for example, if the parent is conducting adulterous and infidel acts in the presence of the child, then the court may award the custody of the child to the other parent.

There are different types of custody awarded to the parent / guardian. The most prominent kind in India is Physical Custody where one parent is given guardianship of the child by the Court while the other parent is given access / visitation rights to the child. The term access / visitation rights mean that the other parent who does not have custody of the child is given the right by the court to meet their child on a predetermined date, time, and location so that they can spend quality time with their child. This is the most favoured kind of custody by the family courts as they believe that by granting visitation rights, the child is not deprived of either of his/her parents during their formative stage and also does not develop parent alienation syndrome.

The second kind of custody includes joint custody where both the parents are given equal rights over the child and the child's responsibilities are shared equally amongst them. This is the most positive kind for both the parents as well as the child as neither of them are deprived of each other and the child can still experience a healthy home as it gives the child an opportunity to have two loving home instead of one broken home. Furthermore, it gives both the parents equal rights of decision making for the child which is far better as compared to just visitation rights, which does not give the non-custodial parent any right of say in their child's life. In other words, in the case of only visitation / access rights to the parent, the said parent is not involved in any of the decision regarding the child or his life and is only allowed to be a part of the child's life till he/she has been permitted by the court.

The third kind of custody includes sole custody wherein only one parent is given the rights to custody of the child and no visitation or any other rights are granted to the other parent. This kind of custody is not very popular in India and only under extreme circumstances is a parent prohibited from meeting their child. Otherwise, it is granted if a parent waives of his/her rights of access / visitation and custody.

We at AnaghaLegal believe that if the couple ends up filing for a contested battle for their child's custody in the courts, the litigation tends to get dirty, and more than the parents, it is the child who gets affected and becomes the procured victim since they constantly witness fights and an emotional turmoil among their parents, which is certainly an unfortunate circumstance for a child. As for a child, both of the parents are dear to him or her, being away from one of them can hamper his emotional state of mind severely. Hence, child custody and visitation is an important affair in divorce that should be dealt with care to ensure a bright future for the child. The Courts also consider the child's best interest as of paramount importance and a paramount factor while deciding cases related to Child custody.

We at AnaghaLegal not only advise child counselling for the children of warring parents but also encourage family / parental counselling as more than the child, it is for the parents to understand and act wisely at such a crucial and most delicate stage in the child's life where at a tender age he or she has to choose between the 2 parents who are his / her world.