Who gets child custody after divorce?
Divorce are not merely the premature conclusion of a marriage. 

The separation has emotions, assets, family interests, and, most importantly, the custody of children involved.

The Supreme Court stated how the interests and welfare of the child are paramount.

The judiciary follows the ‘right of a child’ over the ‘right of a parent’ when deciding.

Provisions for custodial rights –

Following the dissolution of marriage, Indian law provides the following provisions for custodial rights –

Joint Physical Custody:

During the divorce settlement negotiations, both parents have legal custody over their child.

However, they can stay with only one of the two spouses who will act as their primary caregiver.

Sole Custody:

If either of the parents is proven in court as incompetent, abusive, or unfit to act as a caregiver, the other partner is adjudged undisputed custody over the child.

Third-Party Custody:

The court can choose a third party as the guardian for the child if established that both parents are incompetent and unfit for custody.

The court may allow the parents daily, weekly, or monthly visitations based on all parties’ convenience.

The Guardians and Wards Act, 1980

The Guardians and Wards Act, 1980, litigate child custody and guardianship in India.

However, particular laws are altered, considering different religions. For instance –

  • The mother gets custody of a minor child under the age of five by the Hindu Law.
  • As per the Right of Hizanat under Muslim Law, the mother holds the sole rights to custody of children unless there are standing criminal charges against them.
  • Christian Law does not directly influence a custodial settlement. However, the parents are both natural guardians, but the child may choose where they want to reside.
Child is over 21 years

If the child is over 21 years, they can have the right to decide how they want the negotiations to proceed and who will be the custodian.

Although for minors, the court considers their interests before passing the final verdict.

During the divorce settlements, parents also negotiate how they will financially support the child in education and lifestyle aspects.

The motivation behind the laws ensures a safe and secure environment for the child.

The court tips the judgment in favor of whom they feel can provide a stable and healthy environment for the child.

The court is primarily responsible for protecting the child’s property, terms of custody, and supports on legal grounds.

Factors to finalize the judgment

Concisely the court considers the following factors to finalize the judgment –

  • Financial stability
  • Mental and physical state
  • Intensions of the custodian
  • Child’s comfort and well-being
  • No hidden intention to inherit property.


For more details regarding India’s custodial rights, fill-up the form on our website and get in touch with the family law experts and attorneys.

Kinds of Divorce Petitions