Child custody

The  Wife can argue or plead that maintanence be paid first  and than visitation be granted rather than Deny since granting custody  is upto the judge.  I presume the query is the other way round and should read wife rather than father . And in any case visitation can never be denied to a father or a mother .

Thanks Stanley. I have two things to get clarified. 

1. Now that mother has decided to close the case of maintenance and need to know whether she can state that "she has agreed to accept the maintenance one time as full payment and further she will not claim for maintenance till the child reaches the age of 18. And father of the child should not be claim for the custody of the child during this time".  

Otherwise it is going to be one sided with the acceptance of the maintenace and not claiming in the near future from her side and still father can have the visiting rights.  How can we make sure that mother gets the maintenance and avoid child custody?

2. The visiting rights was granted during the separation, however the father has never approached the child since then. Its becoming very difficult for the mother to apply for the child passport. Is their any way she can get a court order stating the custody is with the mother and child passport can be issued without the  father approval?

regards

Divya 

hello,

i m sorry but i think your query is not clear .

can u plz repost it,

Originally posted by : divya
	1. Now that mother has decided to close the case of maintenance and need to know whether she can state that "she has agreed to accept the maintenance one time as full payment and further she will not claim for maintenance till the child reaches the age of 18. And father of the child should not be claim for the custody of the child during this time".

 The settlement has got some basic flaws.  Even though the settlement can be reached by using the above said language, any one of the parties interested to raise future dispute has got ample scope to challenge it in future.  First of all, the parties to the settlement do not believe that the child is an independent entity having its own life and likes and dislikes.  If the child custody question will be left in the hands of the court, the first step the court takes is to find out where the child's welfare lies and grants the permanent custody only to such parent while allowing reasonable visitation rights to the non-custodial parent.  If the child is in intelligible age, his preference of choice will be ascertained first and the court moulds its order in consonance with the wishes of the child.  So, if any such settlement is reached that the permanent custody lies with the mother and father willingly foregoes his right (or abdicates his responsibility)  and after some years, the child after attaining the intelligible age wants to go to non-custodial parent and the latter accepts for the same, the settlement cannot be enforced against the child, despite he being minor.  So, I show an angle in which a child at a later stage can challenge the settlement, even though the chances are far remote.

2.  Maintenance and child custody are both not mutually bargainable rights.  I mean, both are independent rights and cannot be clubbed together.  The wife has got her own maintenance right irrespective of whether she will be having the custodial right of the child or not.  If child custody is with the mother (as both mutually accepted), the father has to provide the maintenance to the boy child till he completes the age of 18 and in the case of girl child, till she gets married.  So, see if the child is girl, the condition of age of 18 does not sustain in law.  I also give a caution, if the mother is accepting the custody of the child, she must  calculate appropriately about the daytoday expenses of the child, educational, medical expenses and it a girl child her marriage expenses also and claim them.  Do not allow the father that as he is foregoing the visitation rights he shall reduce the maintenance on this account.  Bargain the amount properly keeping the intrest of the child.

Regarind obtaining the signature of the father on passport application form, in the settlement it shall be written expressly that he will give no objection for the issuance of passport.  The same fact also to come up in the court order.  As an abundant precaution at the time of filing settlement, you also produce passport application and obtain the signature of the father in the court itself while recording the settlement before the court.  In the settlement also, the fact that father has given no objection on the passport application, be mentioned.

Despite all these precautions, at a future date, the father can contest, most probably in vain, for the custody of the child if the wife goes for another marriage, if the child shows inclination to stay with the father or the father himself claim for visitation rights (despite his express renunciation of such right in the written settlement).

Similarly, the wife can also file case for increase of her maintenance or child maintenance, most probably without success.  

I agree to my leared friends advise but only wish if he could state the laws where in Crpc 125 it has been mentioned specifically that maintanence would have to be paid till she is of  marriagable age and not till she reaches 18  and is a Major . 

@Stanley:

holidays or may be you have got a job abroad and plan to leave the child with your parents than your husband would have the upper hand in taking over custody of the child . If you can give an assurance to the court even though the father is not visiting the child that his visitation rights may not be hampared than through the court maybe you can seek an order but the court too would decide after taking into consideration the fathers objections ( for passport ).

The child passport is to attend the sports tournment  conducted in other countries. 

When custody was granted to you did the order come as such that you cant take the child abroad . During the separation, visiting rights was given to the father, unfortunately father never attempted to  meet the child during these 8 years.