Times of India
16 March 2011
By P Vasanth Kumar

Know Your Rights
Divorce, the judicial separation of parents, can be an earth–shattering event for children, creating feelings of loss, confusion, fear, anger, and sometimes even a lasting resentment.

During a divorce, the issue of child custody becomes a matter for courts to determine. ‘Child custody’ is a term used in family law courts to define legal guardianship of a child under the age of 18.

In most cases, though both parents continue to share legal child custody, only one parent is given physical child custody. Custody of the children involves two parts – legal custody and physical custody. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatment, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child’s housing, educational needs and food.

The most traditional arrangement is for the parties to share joint legal custody, and in most cases, the wife gets physical or residential custody. In such instances, when one parent receives custody, the other parent receives visitation rights. This parent is also referred to as the non–custodial parent. The visitation rights a parent receives vary in each case – ranging from supervised visitation at the court house, to splitting parenting time equally. In a majority of cases, the mother is granted physical custody of the child.

However, if the mother works nights or is heavily involved in an educational pursuit, physical custody is granted to the father.

Key Factors for a Court
Family courts in the country generally base their decision keeping in mind the best interests of the child or children, as the case may be. The parent who is able to provide better financial security, care, parenting skills and also least disturbance, gets custody of the child.

However, the mere fact that the mother is economically less secure or that she suffers from illhealth or a disability is not usually reason enough to deny her custody. This is because maintenance is the responsibility of the father of the child, irrespective of who holds custody.

The emotional and physical environment, moral atmosphere of the household, personal safety of the child, mental and physical health of the parents, age of the children and their preferences, a history of the behaviour of the parents, which could include incidents of abuse, mental and physical health of the parents and also the ability of each parent to care for the child are some broad factors a court considers while making a custody determination.

Parents Should Try and Minimize Trauma
Since children suffer the illeffects of a divorce in different ways, parents should agree to a custody arrangement that is carefully negotiated, thought out and well planned.

The first step a person must take in a custody case is to file a complaint with the jurisdictional family court. The court concerned will then review it for custody mediation or not.

Quite often, a custody case is first sent for a compromise between the parties. If it is unsuccessful, the court orders a hearing to determine the issue of custody.

It is advisable that parents engage a competent lawyer. This helps to dispassionately resolve the issue, and for the parties to arrive at a common, agreeable solution.