In a Pending Divorce, Who Gets the Custody of Child?

The custody of child during divorce proceedings is always a question. Moreover, divorce can be very frustrating and will adversely impact the entire family. And when it comes to divorce if you have kids, this situation gets more troublesome and painful.

This is a long process when you try to own the custody of your child. In some situations, the case on, ‘who gets custody of child in divorce?’ has even taken years before settling to the separation.

Initially, both the parents have the same right for custody of their children if there is no agreement in the place. Also, both the parents own visitation rights and that too, with no legal objections.

So, both the parents have the same right to custody before and during the divorce process.

Divorce is never easy, but we can help

In cases where the divorce is unavoidable and is certain to happen, it is advisable to seek legal guidance, learn about the child custody laws, and proceed with the same to establish the child custody rights.

But, can you get child custody while divorce is pending?

When the parents file for divorce, it totally depends on the child with whom he or she wants to reside if the child is school going or is close to 15 or 16 years old. Here, the parent who owns custodial rights will be the first to get the custody of child and he or she will have to take responsibility of the child’s needs including medical, social, emotional, financial, educational, etc.

However, the parent, who doesn’t hold the right, will only have the right to access.

Custody of child while divorce is pending

Let us understand who gets custody of the kids while a divorce is pending?

The custody of the child does not depend on the earning capacity of either of the parents, however this, for sure, accounts for a safe and secure future of the child.

The rights of a mother who is not earning, shall not be held accountable but the child’s support will be sought from a father who is earning.

1. If the child is in tender age and needs complete care, the right of custody will be preferred for the mother.
2. If the child has reached his age of discernibility, it depends on his desires for taking decisions regarding custody rights and access rights.

Hence, the above two points hint that who should be considered for the custodial rights of a child depending on his or her age.

In case of mutual divorce as well, both of the above mentioned points will be taken under consideration. It is totally wrong to say that the father should be given the right of custody once the child has reached his or her age of discernibility.

Joint custody of child provides the right to both parents but with different intensity. A parent will be given physical custody of the child whereas the other parent will be considered as the primary caretaker in case of a joint custody.

The intensity of access to a non-custodial parent may be daily, weekly, monthly or even fortnightly. The same can be overnight access or even day access. This may increase gradually and it may include special days, vacations or weekends.

The same can be a free access without any scheduled; however, this includes the right of a non-custodial parent to school events such as PTM, annual functions etc. which will be totally dependent on the convenience of the child and the parent who gets custody of child.

If the parent who has the right to access and wants to keep the child for some days (for a week or two), the non – custodial parent has to take orders from the court to that effect depending on the mutual understanding.

Duties that come with custody of child

The right to child’s custody shall also hold responsible the parent to exercise certain duty for the child. This duty is as important for the parents as the right to custody is. Both the parties can agree to any amount or payment during different phases of a child’s education or for monthly expenses as well which are needed for the child, upon agreement.

Now, this amount can be anything, but it has to cover the regular expenses which are required for living a life including social, medical and social needs.

Child custodial rules when kids own property

If the child owns some property in his or her name from either of the parents can also be settled as lump sum which can be adjusted as the expenses for monthly maintenance.

If there are investments in the name of the child which are potential enough of larger return in future (insurance & educational policies), can also be taken into consideration. Further, any situation of emergency (covering medical situations) will also be held accountable while handing over custody of child.

Saying that the money given in the name of the child for his or her expenses will be misused by the custodial parent should not be considered for the prevention of the cordial settlement.

The court will be the authority, and will also be the ultimate guardian. All the laws/rights, custody terms etc. will be protected by the court only. Every decision will be initiated in ‘the best interest of the child.’ The welfare of the child will be taken as the paramount consideration.

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