Children's custody to father

Hello,

In India, it is believed that no one can be a better caregiver than a mother. Unfortunately, it is not true all the time.

Though while giving the custody the mother is given the first priority, the father can get it by following ways:

1.     If the mother is willing to give up the custody of the child, then the father may get custody.

2.     If the mother is not mentally stable, the father is the next person to get custody of the child.

3.     If the child is of 13 years or more and expresses his wish to stay with the father, the Court shall grant it to the father.

4.     In case the mother is of an immoral character, which may affect the child as well, the father gets the custody.

5.     If the father can prove the financial incapacity of the mother which shall in future affect the upbringing of the child and also prove his financial capability to take good care of the child. 

6.     If the father can prove that the background of the mother has been in dark and that if the child will stay with the mother it will prove to be fatal to the upbringing of the child or shall affect his mental and physical growth. 

7.     If the mother is a convict herself, the custody of the child shall thereafter go to the father. 

Although the above – mentioned points are few of which are used in the court to get custody. The same is not exhaustive and can vary depending from case to case on the basis of facts and circumstances.

Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody to the exclusion of all other courts.

PROCEDURE TO FILE CHILD CUSTODY CASE:-

A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody  application for Interim or Temporary custody as well as Visitation Rights.

Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.

As stated above in certain situation and exigencies a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or a write petition under article 226 of the Constitution of India can be filed. 

Key points:

Child custody cases are emotionally taxing for parties, concerned counsels, as well as the Judge(s).

Generally, the age of majority is eighteen years and in some cases it is twenty-one years.

Nowadays courts often take the helps of experts such as counsellors, psychologist or other specialist dealing with issues of child custody.

It is extremely interesting to note that all judgements that attain finality bound parties with the final outcome. However, the decision or the judgements of child custody cases are never final. It is a departure from the general law. To explain further, Custody of Child has been awarded by judgement or by mutual consent to one of the parent. However, the welfare of the child is prejudiced by the acts and omission of the custodial parent . (Source:Vidhikarya)

Thank you

mother is incapable financially and had extra martial affairs and mentally disabled 

You have not mentioned the age/s of the Child/Children and also not mentioned whether the child/children is/are Boy/s or Girl/s.  These facts are very important in the matter of custody of Children in Divorce/Separation cases.

As already advised above, you may proceed to file a suitable petition before the Court duly explaining and attaching evidence of the Mother not being able to support the Children. However, if the age of the Child/Children is too tender, normally Courts do not permit custody to the father and you may be asked to pay money to Mother for the support of your Children. By filing a suitable petition, you may at least get visitation rights. On other matters, Court shall decide whether the Custody should be given to you or you should be called upon to pay money to your Wife to support the Children.

Age of the boy is 18 years and girl 14 years 

Okay, the ages of children are informed. Boy is a major now and it's for him to decide where to live.  Girl isn't yet a major but old enough to decide, but she still needs Mother. You may file petition before Court seeking custody as advised above. Court may in all probability examine the Children too and elicit their opinion as to where they want to live ie with mother or with you. Then, Court shall decide ultimately.

Any right as to visit/custody of the children would be possible through the due process of law. You may place all the relevant aspects before the Court.