In Session: Dad Vs Mom

Our Legal Expert Answers Your Questions

Q1: I am in the process of getting a divorce. I have a son aged 8 and a 10-year-old daughter. My husband is claiming custody, saying that his parents will support him in looking after the children. Every argument I make for increased maintenance is met with the reply that custody should be granted to him. What are the chances that I will get custody of my children?

Answer:

Dear Reader,
In cases where both parents are equally qualified to look after the children, the Court considers only the best interests of the minor children. Financial capacity is not the sole factor; the father is still obligated to provide maintenance regardless of who has custody.

The advancing age of your husband’s parents will be taken into account, as will the fact that a girl approaching puberty typically requires her mother’s presence. The preferences of the children themselves will also be considered.

However, each custody case is decided based on the unique facts and circumstances presented.

Q2: My wife and I have been divorced for the last five years. She has custody of the children, and I have visitation rights. Now, my wife is planning to remarry, and my children are against it. Our divorce was by mutual consent, and the custody arrangement was part of the decree. In this changed circumstance, can I now seek custody of my children, with visitation rights for my ex-wife? For context, I have also remarried and have a 3-year-old child. My older children spend their holidays with us.

Answer:

Dear Reader,
“All orders relating to the custody of minor wards, by their very nature, must be considered temporary, made based on the prevailing circumstances.

With changed conditions, including the passage of time, the Court is entitled to vary such orders if doing so serves the welfare of the wards.

Orders relating to custody, even those based on mutual consent, may be modified by the Court if the welfare of the children requires it.”

The above is drawn from a Supreme Court decision and answers your question in principle. However, if you wish to seek a change in the existing order, you must file an application before the Family Court.

Q3: My husband and I have initiated divorce proceedings. We have a 14-year-old son and a 12-year-old daughter. My son is more attached to my husband, and I feel I may not be able to manage him as he grows older. Can I seek custody of only one child? Will this affect my chances of getting custody of my daughter?

Answer:

Dear Reader,
At the outset, it's important to note that Courts generally do not favor separating siblings. Current thinking emphasizes that children should grow up together for their emotional well-being and balanced development.

If you and your husband can come to a mutual agreement, the Court is unlikely to interfere. Regardless, the children's opinions will be sought before any custody order is issued.

About the Expert

Advocate Anita T is a graduate of Dr. Ambedkar Law College, Chennai. She has been practicing law for over 20 years in both the Madras High Court and Lower Courts.