For parents going through divorce or separation,dealing with the child custody can be extremely difficult and emotional for both the parents and the children themselves. Quite often we meet parents that are going through divorce or separation ask us if their child can choose which parent they want to live with. And many clients are surprised to know that officially children can not choose which parent they want to live with until they reach a discernible age. However, if there is any dispute between the parents over the child custody and access , the courts will very well take the child’s preferences and opinions into consideration.
In child custody disputes, You may have two main options: You can either form an agreement through mediation or private negotiation or you can approach the court for child custody. Most of the family lawyers can help you navigate either process in child custody matter. When parents are unable to mutually agree on a parenting agreement at the time of mediation, then you may approach the court on custody and access. When you go to court for child custody, the judge makes a decision based on the best interest of the child. Determining which custody arrangements and visiting rights are in the best interests of the child depends on factors like the parent’s ability to care for the child, the child’s relationship with each parent, child’s needs, age and health, the child’s adjustment to the home, any history of domestic violence etc.
How Child Custody in India is decided ?
As the generation has evolved over the past years ,so as the mind of the people and judiciary . Custody of Child has now become “ the right of Child, not the right of parent. The parent who is more capable of looking out for the educational, social, health and emotional needs of the child will be given the custody of child in India.
The earning capacity does not affect the custodial right of the parent in India. What matters is the capacity of the parent to provide safe and healthy environment to the child. Even if the father is the earning figure and mother is a housewife, still the court may decide to give the custodial right to the mother if the child is of tender age and give the father other rights and responsibilities. When the child attains a discernible age , then the child may choose with which parent he/she wants to live.
So the answer to the title question can my child in India ever choose that which parent to live with is “Yes” but only after attaining a discernible age -9 years as per the Guardian and Wards Act, 1890. Only after the child attains the age of 9 years , his/her preferences are considered by the court.
Legal Insights by Beulah – Expert in Legal Strategy & Psycho-Legal Consultation
I am a practicing advocate at the Madras High Court, specializing in family law, High Court litigation, Supreme Court matters, and psycho-legal consultation. With a strategic and solution-driven approach, I help clients navigate complex legal issues with clarity and confidence.
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