• Mutual Consent without child's custodial rights mentioned in the divorce papers

The boy child is 7 years,Divorce on Mutual Consent 5 years back but the child's custodial rights is not mentioned in the divorce papers and the biological father has not visited nor paid any alumni nor had one time settlement made for the child. Father is also said to be married 2 years back and living abroad. Will there be any problem if the mother wants to get married and take the child abroad
Asked 7 years ago in Family Law
Religion: Hindu

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15 Answers

No problem will be caused since the father is also married to another women and he was silent for the past 5 years so court won't allow him to take custodial of his son :) even he applies for custodial :) thanks

Shiva Bharathy
Advocate, Chennai
102 Answers
1 Consultation

No there will be no issue if she takes the child to some foreign country.

If she has re-married then child will be adopted by the father.

Regards

Anilesh Tewari
Advocate, New Delhi
18090 Answers
377 Consultations

The custody of the child remains unaffected with the remarriage of the parent.

Since you enjoy unhindered physical custody of the child, to take him abroad you don't require consent of your ex husband.

So decide accordingly.

Devajyoti Barman
Advocate, Kolkata
23198 Answers
510 Consultations

1) forctaking child abroad you would need biological father consent

2) you are at liberty to remarry

Ajay Sethi
Advocate, Mumbai
96803 Answers
7810 Consultations

In case the child was in your custody at the time the marriage was dissolved by mutual divorce, it will be presumed that your ex-husband had no problem with this, i.e, your custody with the child.

Moro ever, the status quo has continued to be so, because neither he has visited the child, nor claimed his custody. Under the said circumstances you mat re-marry and take the child abroad,however, do that after your husband adopts your child.

Vibhanshu Srivastava
Advocate, Lucknow
9659 Answers
307 Consultations

Respected mam..

If child is with you and you want to marry again you can get marry after divorce as it is your right and no want can wave off this right from you..There will not be any problem ..But yes your husband can claim for child custody if he want but it does not seems that he will claim because he seema auch a care less person who had not even meet his child through the time ...No need of worry just go ahead...

Thanku

Dinesh Sharawat
Advocate, Delhi
1265 Answers
12 Consultations

Hi,

Since your divorce was "Mutual Consent", everything mentioned in the consent terms has to be followed. Now, the divorce procedure is complete, you can marry again if you wish so and take the child abroad. There will not be any problem as the divorce was legal and both are free to marry again.

Rajni Sinha
Advocate, Mumbai
425 Answers
39 Consultations

Hi, if it is not specifically mentioned and in the absence of any direction about the custody in the divorce decree , then the mother can keep the custody and can settle anywhere

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

In this condition mother of the child shall be his guardian.  after getting divorce his mother can solemnize another marriage with her free consent. As far as custody is concerned his mother has right to take him abroad after getting marriage. His biological father cannot create any hurdle because according to guardians and wards act a careless father cannot claim guardianship over the child. Court always consider the Welfare of the child in order to decide guardianship therefore if his father claims guardianship such claim shall be dismissed by the court.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

1. The custody of the child was not been decided at the time getting the MCD decree when the child was just 2 years old.

2. The question of custody of the child other than the mother did not come up till now since mother is considered as natural guardian of the child below the age of 5 years.

3. Ordinarily, custody of the child is not given to the divorced partner who remarries.

4. In you case both of you have got or are going to get married again.

5. Since he has not yet filed any custody case so far, there is no restriction on you till now in taking your child abroad who is in your continuous custody, after getting remarried.

Krishna Kishore Ganguly
Advocate, Kolkata
27453 Answers
726 Consultations

No Issues. Unless there is a claim for the child custody and the father is him self not interested for the child you can go ahead.

Rajashekar
Advocate, Bangalore
591 Answers
4 Consultations

Dear Client,

Since ur x husband is not taking care of child and neither any assistance in his welfare, there`s will be no legal complication, at least no legal liability or wrong.

After divorce ur second marriage is valid.

Yogendra Singh Rajawat
Advocate, Jaipur
22987 Answers
31 Consultations

Hi

The concept of MCD is all claims settled by each party against the other.

As far as your query is concerned, it appears that the child's biological father is not interested in the child, as such, due to passage of time i.e., 5 years post MCD the lady may go ahead and get married again.

The lady can proceed according to her convenience about her child.

Good Luck

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

Since there is no information from the biological father of the child so far after the dissolution of your marriage, you need not be worried about having the sole custody of the child even after you propose to remarry another person, provided the new spouse has no issues with this arrangement.

You can very well take your child abroad in your capacity, if you want to take the child through your new spouse, he need to have adopted the child legally to take the child in his adoptive father capacity

As a biological mother you can give the child in adoption to your new spouse if you have not heard of the biological father of the child for many years, by making an affidavit to that effect.

T Kalaiselvan
Advocate, Vellore
87004 Answers
2335 Consultations

1. Since the issue of child custody is not covered by the decree of divorce either parent is now at liberty to agitate it in the court through a petition for child custody.

2. The mother, if she has the custody of child, can seek maintenance for the child from his biological father.

3. Mother is free to remarry and relocate with the child out of India unless there is an injunction operative against her.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

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