Earlier it was a pattern seen widely within the country how families shared their homes and lived together as part of joint families. Then came the age when couples began separating from joint settlements and began nuclear families of their own. Both these types had their benefits and consequences. And yet, the consequences trumped the benefits largely.
Nuclear families are not able to spend quality time together as they could in joint families. Taking care of kids in the absence of parents becomes a tough task for nuclear family couples. To add to this, if they incur a divorce for reasons known to them, the child becomes a pawn in this mess. Unfortunately, it is the child that faces the brunt of this separation.
If the child is minor, the custody is usually decided only between the parents without taking the child’s point of view. As such, personal laws are conflicting as compared to the secular enactment in the form of The Guardian and Ward Act, 1890 which considers a child’s interest to be of high importance and thereby the Court of competent jurisdiction endeavour to strikes a balance between the two.
When the first signs of distress and trouble start showing parents turn towards their closest members of the family, especially the grandparents, since they are generally the next of kin. The grandparent’s custody rights in Oklahoma states that when a child is removed from his family by the Oklahoma DHS, the child comes under the legal custody of the state of Oklahoman and is transferred into foster care. However, the officials believe that if the child is taken in by a family is always a better idea since the transition can be less traumatic for the child.
The laws in India are divided depending upon the Act under which the couple had gotten married, which will ultimately decide the fate of the child in the time of separation. However, grandparents can gain the guardianship of their grandchild by appealing in Court for this right. As a guardian, they are entitled to take decisions for their grandchild until the child turns 18.
The grandparent’s custody rights in Oklahoma also believes that when a child is 14 or younger, the judge hands them over to the guardian. But if the child is older than 14, the Court considers the child’s opinion under custody matters. In India, the age is nine at which the Court decides to take their opinion under consideration.
Under Indian law, the primary preference is given to the child so that both parents can be given equal rights over the child. The other types of custodies prevailing within the country upon dissolution of a marriage is as follows:
Joint Physical Custody: This is a new concept that has been brought towards custody settlements in divorces. This means that both parents will have legal custody of the child, but one of them will have physical custody since the child will reside with this parent.
Sole Custody: This type of custody is prevalent when one of the parents proves that the other is abusive and unfit to be a custodian of the child. These types of settlements can turn out to be ugly both for the child and the parents involved.
Third-Party Custody: In this, neither of the parents are given sole custody, but a third party is granted custody as a guardian of the child. As mentioned above the Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, to not hurt cultural sentiments within the country, the Court also sanctions laws pertaining to different religions.
Custody may seem like a fairly general topic to discuss, but it is a painful procedure to go through for those involved in it. Usually, when the child is below five years or when it is about older girls, the custody is handed over to the mother whereas older boys are given custody with the father. Despite all of this, custody laws differ as per religions within the country.