Overview
In custody and guardianship matters the court’s guiding principle is the welfare of the child. Arrangements are decided on what is best for the child’s upbringing, education, safety and emotional well-being, rather than on the rights of either parent alone.
Maintenance is a separate but often connected issue. Spouses, children and, in some cases, parents may be entitled to support depending on their circumstances and the law that applies. The office assists with applications, defence of claims and enforcement of orders.
Matters commonly handled
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Custody of children
Applications for sole or shared arrangements, and responses to such applications.
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Guardianship
Appointment or declaration of a guardian under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.
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Visitation and access
Arrangements for the parent who does not have day-to-day custody to meet or communicate with the child.
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Interim custody
Short-term arrangements while a divorce or custody case is pending.
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Child maintenance
Claims for the child’s education, health care and daily needs, and variation of existing orders.
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Spousal and parental maintenance
Applications for maintenance of a wife, and of aged parents who cannot maintain themselves, under the applicable statutes.
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Enforcement and modification
Steps where orders are not complied with, or where circumstances have materially changed.
How legal assistance may help
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Putting the child’s interests first
Petitions and responses are framed around the child’s welfare, which is the test the court applies.
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Documenting the facts
Evidence of the child’s schooling, care arrangements, health and the parents’ circumstances is organised for the court.
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Seeking practical arrangements
Where possible, workable visitation and maintenance terms are negotiated or placed before a mediator so that the child is not drawn into prolonged conflict.
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Financial disclosure
Helping clients present income, assets and expenses accurately, since courts consider the means of the parties.
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Enforcing and revisiting orders
Pursuing compliance, and applying for change where circumstances materially change.
General procedure
The procedure depends on whether custody is raised within a divorce case or on its own, and on the personal law that applies. The outline below is general only.
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Step 1: Choose the forum
Custody and guardianship petitions are filed before the Family Court or the District Court with jurisdiction, usually where the child ordinarily resides.
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Step 2: Petition and notice
The petition sets out the child’s details, the circumstances and the arrangement sought; the other parent is notified.
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Step 3: Counselling and interim arrangements
The court may refer the parties to mediation or counselling and may pass interim orders on custody and visitation.
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Step 4: Evidence and the child’s views
The court hears the parties and may ascertain the child’s own preference if the child is old enough to form an intelligent preference.
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Step 5: Orders
The court passes orders on custody, visitation and maintenance, which can later be varied if circumstances change.
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Step 6: Maintenance applications
Maintenance may be sought in a matrimonial case, before the Magistrate under Section 144 BNSS, or under the Hindu Adoptions and Maintenance Act, 1956, depending on who claims and why.
Documents that are usually useful
- Birth certificate of the child and identity documents of the parents
- School, medical and other records showing the child’s routine
- Marriage certificate and details of the separation
- Income proof, bank statements and details of expenses
- Earlier orders, mediation outcomes or settlement terms
Please do not upload or send confidential documents through the website. Documents are reviewed at a consultation.
Frequently asked questions
There is no automatic rule. The court decides on the welfare of the child, taking into account the child’s age, needs and circumstances and each parent’s ability to care for them.
Access is generally considered important for the child’s well-being. A court may regulate or restrict access only where the welfare of the child requires it.
Yes. Maintenance for children can be claimed in or alongside matrimonial proceedings, before the Magistrate under Section 144 BNSS, or under the applicable personal-law statute.
Orders concerning children are not always final. A court may modify them if circumstances change materially and the welfare of the child requires it.