Child custody is often complicated, but when the parents are unmarried, establishing parental rights can make custody, visitation, and child support more problematic. When two people have a child out of wedlock, custody of the child is immediately awarded to the mother, though the father may pursue custody for a variety of reasons. To better understand your rights as a parent, we’ve outlined some of the general rules relating to the custody of children of unmarried parents.[1]
A “custodian” is a person who “guards or protects” someone else. In a court of law, child custody means the appointing of one or more persons to take care of and control a child under the age of 18 years.[2] Usually and in most states, the order will state that physical custody and parenting time rights terminate at “the age of majority” (which is 18, in most states). If the order is silent, the default rule usually is that the rights terminate at the age of majority, too. This is so even if child support.
The Mother’s Rights[3]
Unmarried and married parents often face the same legal issues regarding their children, though the law makes it somewhat more complicated for children born to unmarried parents.
As a rule, in most states, if the parents are not married, the mother is automatically given primary custody rights over the children. This means she has complete authority to make any major and minor decisions regarding her child’s welfare.
A mother with full legal and physical custody is responsible for decisions regarding:
- Home residence
- School
- Child care
- Health needs (doctor, dental, therapy, counselling, etc.)
- Sports, church, summer camps, and other extracurricular activities
- Vacations and travel
- Under the Hindu Minority and Guardianship Act, 1956, a Hindu minor’s natural guardian is his/her father. The mother is a guardian only ‘after’ the father. This implies that, in case of divorce, a mother has to file for custody of the minor as she is not assumed to be a ‘natural guardian’. But, section 13 of the same act also lays down that right of the father to be a guardian of the minor is subordinate to the welfare of the child. This goes on to show that the act values the minor’s welfare above all. If the minor is of the age of 5 or below, then, it is assumed that the mother is the natural guardian.
- Under Muslim Law, be it the Shia or Sunni sect, a father is considered to be the natural guardian of the minor child. The mother is not given the status of a natural guardian, even after the death of her husband. This means that under Islamic law, a father will have guardianship, even if the mother has custody of the minor, after divorce. Although the mother may have custody of the child after divorce, the father still remains the guardian of the child, as he may decide about the child’s movement, education, religion and other important matters.
- Christians and Parsis follow the Guardians and Wards Act, 1890, which is essentially a secular law regarding matters of guardianship.
MOTHER CAN BE CONSIDERED AS A LEGAL GUARDIAN:
Supreme Court in ABC vs. The State (NCT of Delhi) AIR 2015 Stated a path breaking judgment on gender equality and ruled that even an unwed mother must be recognized as legal guardian of her child without forcing her to disclose the name of the child’s biological father. Held:
- In a petition for appointment for guardian of child, it is not imperative for unwed mother to specifically give notice of such petition to putative father of child to whom she has given birth.
- Under a guardianship petition laid before court- the concerned child ceases to be in exclusive custody of parents thereafter until attainment of majority-child continues in curial curatorship.
- This is in light of parents patria jurisdiction of court.
CHILD ORDER-CUSTODY EXISTS TILL HE/SHE ATTAINS MAJORITY:
This was held in the case of: Gaurav Nagpal vs Sumedha Nagpal on 19 November, 2008, [CIVIL APPEAL NO. 5099 OF 2007], Supreme Court of India:
Held:
- Custody shall be valid till the child attains majority: “Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court’s view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence, a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to consideration.
2. Also the detention of the child shall be legal in context to the welfare of the child: “It was also indicated that ordinarily, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case of such a writ sued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child.”
Who is a major?
According to Indian Majority act 1875, Section 3 talks about the Age of majority of persons domiciled in India:
Section 3(1)- shall attain the age of majority on completion of 18 years and not before. Unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of 18 years of age.
Section 3(2) states that in computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. But if the child born is appointed a guardian or he/she is under court of wards then he/she attains majority after his completion of 21 years of age.
When does court-ordered child custody end?[4]
Court-ordered child custody usually ends when:
- the child turns 18 years of age,
- the child gets married or joins the military;
- the court ends the support or custody; or
- the child dies before the age of 18;
whichever occurs first.
MALE ABOVE 16 YEARS AND FEMALE CHILD ABOVE 14 YEARS CAN NOT BE COMPELLED TO LIVE IN THE CUSTODY:
This was laid down in the case of Rukmangathan vs J. Dhanalakshmi on 16 December, 1997,[Equivalent citations: (1998) 1 MLJ 628], Madras High Court
In Re Kamal Rudra Das J. expressed the same view vividly thus[5] I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother.” But a mother who neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody.
In respect of older children our courts take the view that the male children above the age of sixteen years and female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which they object.’ However, even the wishes of the mature children will be given consideration only if they are consistent with their welfare! In ‘Venkataramma v.. Tulsi’,’ the court disregarded the wishes of the children as it found these to induced by wholesale persuasion and were even tortured.
CUSTODY/ GUARDIANSHIP in case of a MAJOR WITH SPECIAL ABILITY:
Section 14 of The National Trust Act states the procedure through which the court can appoint guardian for the person with special abilities.
According tp National Trust Act,1999, Section 14 states that:
Appointment of guardianship – (1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability. (2) Any registered organisation may make an application in the prescribed form to the Local Level Committee for appointment of a guardian for a person with disability. Provided that no such application shall be entertained by the local level committee, unless the consent of the guardian of the disabled person is also obtained. (3) While considering the application for appointment of a guardian, the local level committee shall consider- – whether the person with disability needs a guardian; – the purposes for which the guardianship is required for person with disability. (4) The local level committee shall receive, process and decide applications received under sub-sections (1) and (2), in such manner as may be determined by regulations: Provided that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligations which are to be fulfilled by the guardian. (5) The local level committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations.
Cases:
- Nityanandam vs Tmt.D.Saritha on 16 April, 2013; Madras High Court
Held that: The Original Petition filed under Guardians and Wards Act, 1890 is not maintainable. However, the Original Petition is disposed of giving liberty to the petitioner to approach the District Collector, Chennai under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, in Form A in terms of Rule 16(1) of The National for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2000 for appointment of guardian of the person and property of Miss. G.Prabhavathy, alleged mentally retarded person. On receipt of the application, as assured by the learned Advocate General, the District Collector, Chennai, the Chairman of Local Level Committee will consider the same and take up the claim in accordance with the provisions of the Act and the Rules immediately.
- Kerala High Court
Narayanankutty Menon vs State Of Kerala Rep. By Chief on 17 February, 2009, [RP.No. 143 of 2009(H)]: It is contended that Section 14 of the aforementioned Act specifically empowers the appointment of any person as the guardian of the person with disability and not as the guardian for the property of the person with disability.
It is true that Section 14 of the aforementioned Act refers only to the appointment of a guardian of the person with disability. But Section 15 of the said enactment, in my view, reflects the legislative intent, to clothe the person, who is appointed under Section 14 of the Act, to act as the guardian with regard to the property of the mentally retarded person also. Section 15 reads as follows:
“Every person appointed as a guardian of a person with disability under this chapter shall, wherever required either have the care of such person of disability and his property or be responsible for the maintenance of the person with disability.”
CONCLUSION:
When the child turns 18, the custodial rights end and therefore visitation rights end as well. A person after attaining the age of 18, himself becomes eligible for being a guardian. Therefore, he’s no longer treated as a child and it’s his personal discretion whether to stay with his custodial parent and to have the non-custodial parent visit hiim.
References:
[1] https://www.mckinleyirvin.com/family-law-blog/2017/june/what-are-the-parental-rights-of-unmarried-parent/
[2]http://www.sdcourt.ca.gov/portal/page?_pageid=55,1524383&_dad=portal&_schema=PORTAL#:~:text=Court%2Dordered%20child%20custody%20usually,the%20support%20or%20custody%3B%20or
[3] https://www.mckinleyirvin.com/family-law-blog/2017/june/what-are-the-parental-rights-of-unmarried-parent/
[4]http://www.sdcourt.ca.gov/portal/page?_pageid=55,1524383&_dad=portal&_schema=PORTAL#:~:text=Court%2Dordered%20child%20custody%20usually,the%20support%20or%20custody%3B%20or
[5] http://www.legalserviceindia.com/article/l34-Custody-Laws.html
