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Nov 254 min read

How To Handle Child Custody In An Nri Divorce

In Any Divorce Proceeding, Child Custody Is Very Important. The Court Sees The Best Interest Of The Child In Cases Of Child Custody. The Matter Of Child Custody Becomes More Important In The Cases Of Nri Divorce. There Are Several Legal Provisions Governing Child Custody In India. Let Us First Discuss What Child Custody Is.

What Is Child Custody


Child Custody Is The Process Of Keeping, Caring For, And Controlling A Kid Under The Age Of 18 By The Parent Who Has Been Granted Custody, Taking Into Account Characteristics Such As Understanding The Child, Financial Security, Lifestyle, And So On. Child Custody Concerns Involving An Nri Overseas Are Quite Challenging. Each Country Has Its Norms And Regulations. The Custodial Parent Has The Sole Right To The Child’s Medical, Emotional, And Educational Needs, While The Non-Custodial Parent Merely Has The Right To See The Child.


Legal Provisions


India Does Not Have Any Separate Law That Deals With Child Custody Disputes Between Nri Parents. The Uniform Child Jurisdiction And Enforcement Act (Uccjea)Was Designed To Resolve Child Custody Issues And Grant Jurisdiction To The Children's Home State. Many Times, The Custody Of Children Is Resolved Under International Conventions. If A Parent Wrongfully Takes A Child From Care, They Will Be Held Accountable Under Article 226 Of The Indian Constitution, Read In Conjunction With Article 32. Section 3 Of The 1980 Hague Convention Lays Forth The Provisions For Illegal Child Custody. However, Because India Is Not A Party To This Convention, They Are Unable To Apply This Regulation Or Any Other Provisions Of This Act.


Indian Courts May Respect Foreign Custody Decisions, But They Will Always Examine The Circumstances To Ensure The Child's Well-Being Is Emphasized.  The Court May Issue Exclusive Custody, Shared Custody, Or Visiting Rights, Depending On What Is Best For The Child's Welfare. Indian Courts Primarily Handle Child Custody Cases Under The Guardian And Wards Act Of 1890 And The Hindu Minority And Guardianship Act Of 1956. Courts Prioritize The Child's Well-Being, Taking Into Account Issues Such As Age, Emotional Needs, And Health.


Types Of Custody


There Are Several Types Of Child Custody. Let Us Discuss These In Detail:


  • Physical Custody Indicates That The Child Will Be Under The Physical Guardianship Of One Parent, And The Other Parent Has The Right To Periodic Interaction And Visitation. The Child Resides With One Parent For A Variety Of Reasons, Including Emotional Attachment, The Child's Well-Being, And So Forth.

  • Joint Custody Means That Both Parents Will Take Turns Looking For The Child While It Is In Their Care. The Child's Rotation Among The Parents Can Last A Few Days, A Week, Or Even A Month. This Benefits The Child Since, On The One Hand, The Youngster Receives Both Parents' Attention, And On The Other Side, Parents Can Be Involved In Their Child's Life.

  • In The Case Of Sole Custody, The Other Parent Is Completely Excluded And Denied Any Rights Over The Child Due To A Prior Record Of Abusive Behavior Or Their Inability To Be Favorable To The Child In A Certain Way.

  • In The Instance Of Custody By A Third Party, The Judge Believes That Both Parents Are Incapable Of Raising A Kid And That Giving Them Parental Rights Would Be Injurious To The Child. A Third Party Related To The Parents Is Appointed As The Child's Caretaker.


How To Handle Child Custody In An Nri Divorce


  • In The Case Of V. Ravi Chandran Vs. Union Of India, 2009, The Habeas Corpus Case Was Filed In India, Arguing That The Mother Cannot Violate The Us Court Judgment And Is Seeking Custody Of The Child. The Father Was A Us Citizen, And The Us Court Granted Him Joint Custody Of Their Child With The Mother. The Mother Then Took The Child To India, While The Father Secured An Order From A US Court Allowing Him Sole Custody Of The Minor Child.


The Supreme Court Also Stated That When A Foreign Court Orders Custody Of A Child To The Father, The Mother Cannot Transport The Child Away From Him Or Beyond The Nation Without His Knowledge Or Agreement. The Court Emphasized That The Most Important Criterion In Considering Any Custody Matter Is What Is Best For The Kid. The Court Also Concluded That The Foreign Court's Order Is A Significant Aspect In Determining The Child's Welfare, And Custody Concerns Are Determined By The Facts Of Each Case.


  • In The Case Of Ruchi Majoo Vs Sanjeev Majoo, 2011, The Mother Filed A Petition Under The Guardian And Wards Act Requesting Guardianship Of The Child At The Same Time That Legal Proceedings Commenced In A Foreign Court. The Supreme Court Has Ruled That Indian Courts Have The Power To Resolve Custody Issues Involving Minor Children, Even If A Foreign Court Has Ruled In Favor Of Either Parent.


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