When a parent is given physical custody, the minor is placed under that parent’s guardianship, with the other parent having periodic contact and visitation. The purpose of a custody arrangement like this is to provide the child with a better living in a safe and fulfilling environment while also ensuring that the child does not miss out on the other parent’s attention throughout his or her formative years.
Despite Indian courts’ belief that it is best for a minor’s welfare, shared custody of a child does not indicate that both parents must remain together for the child’s sake. While the child is in with the parents, a joint custody means that both parents will jointly take care for the child as per court’s order. The child may spend a few days, a week, or even a month rotating between the parents. This is, at times, seen advantageous to the child because, on the one hand, the child receives both parents’ attention, and on the other hand, parents can participate in their child’s life. However, the Hon’ble Supreme Court have disapproved this practice in a few latest judgments considering the inconvenience faced by the child during such arrangements.
Legal Custody to a court appointed Guardian:
Legal custody of a child is given by the court to any other person by the order of the Court keeping in mind the interest of the Child. It means that the parents have obligation to make all medical, educational, and other arrangements of the child even if the child is living with the court appointed guardian. In some cases, such as when the divorce battle fought between the couple is bitter and the parents are unable to agree on anything (even the custody with one of the parents), the court gives legal custody to someone else other than the parents as a last resort.
The important principles applied by the Courts:
- The financial stability of the legal guardian;
- The purpose of the custodian (any malafide, i.e., improper or deceptive intention that may harm the child);
- The child’s comfort level and affection with the parent, particularly when the youngster is able to express his wishes;
- The court has complete discretion in determining what is in the best interests of the child;
- The parents have visitation rights with the child;
- The rights of parents are irrelevant while deciding custody of the child;
- In divorce and maintenance cases, the child cannot be a source of inheritance;
- The court has to ensure that the child is not exploited and his best interest is to be seen.