We are separating. Who gets custody of our children?
Simple answer
There is no automatic rule. The court decides based on what is best for the child (the child's welfare). Children under 5 usually stay with the mother. The other parent usually gets visiting rights, and not having custody does not end the duty to support the child.
Real-life examples
Deepa and Manoj are divorcing, and their daughter is 3. The family court gives day-to-day custody to Deepa, as young children usually stay with the mother, and lets Manoj meet her every weekend.
Tenzin, 12, wants to live with his father because his school and friends are there. The judge talks to Tenzin privately and may give weight to his wish, along with his studies and stability.
Anita's ex-husband says she will lose the children because she has remarried. Remarriage alone does not decide custody; the court still looks at what is best for the children.
What should you do?
- 1Try to agree on a parenting plan: where the children live, school, holidays, visits and expenses. Courts usually respect fair agreements.
- 2If you can't agree, apply to the family court for custody, either in your divorce case or separately under the Guardians and Wards Act.
- 3Ask for interim custody or visiting rights if the case will take time.
- 4Keep records of your role in the child's life: school, health, daily care, and your home and work situation.
- 5Ask for child maintenance from the other parent, under BNSS Section 144 or in your divorce case.
- 6If a child is in danger or taken away against a court order, tell the court at once. In an emergency, call 112 or Childline 1098.
Exceptions & limits
- Custody (who the child lives with) is different from guardianship (legal decisions). For Hindus the father is the natural guardian, but the mother can also act as guardian (Githa Hariharan, 1999).
- Under Muslim personal law, the mother usually has custody (hizanat) of young children, while the father is the guardian. Courts still decide by the child's welfare.
- Custody orders are not final forever. Either parent can ask the court to change them if circumstances change.
Official legal reference
Guardians and Wards Act, 1890 — Sections 7, 17, 25
Court can appoint a guardian and order custody; it decides by the child's welfare, age, wishes and each parent's ability.
Hindu Minority and Guardianship Act, 1956 — Sections 6, 13
Natural guardians of a Hindu child; custody of a child under 5 ordinarily with the mother; the child's welfare is paramount.
Hindu Marriage Act, 1955 — Section 26
In Hindu marriage cases, the court can make and change orders on children's custody, maintenance and education.
Githa Hariharan v. Reserve Bank of India (1999)
The mother can act as a Hindu child's natural guardian even while the father is alive, in suitable situations.
Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 144
A minor child, born in marriage or not, can claim maintenance from a father who has enough means.
Earlier: CrPC Section 125Read the official text
Where to get help
NALSA Free Legal Aid
Free lawyer and legal advice for eligible people through Legal Services Authorities.
Source & status
- Applies to
- All of India
- Law in force since
- 1 Jul 1890
- Legal review
- Draft — awaiting lawyer review
Educational information, not legal advice for your case. Exact facts and the law that applies matter — speak to a lawyer before acting.