• Child visitation

I have filed GWOP for custody for my son who is 4.5 years old now - Case in District Family court 

My prayers in the petition are for Custody only and I didn’t mention anywhere for visitation as a alternate if I am not getting custody as final orders- I have filed a IA for visitation and the judge orders weekly once and it’s not complied by her. Also i filed divorce as a separate case and my wife file restitution of rights and both the cases joined and one single trial is going on

Now we are filing written arguments by monday ( 19.3.2018) and after that we expect final orders in two weeks and seeing into the Judge mood and my kids age I will not get custody-

Will I get visitation rights when I don’t seek them in any of my prayers ?

What I should do now to get the visitation orders if the order is not given for custody?

If judge dismiss my divorce petition and allow her restitution petition, how will i get my Kids visitation rights?

How to plead to get the weekend overnight access, and Shared parenting
Asked 6 years ago in Family Law
Religion: Hindu

4 answers received in 10 minutes.

Lawyers are available now to answer your questions.

17 Answers

1. If the IA has been moved then you will get the visitation right even if the petition seeking custody is dismissed, the custody petition can be dismissed in terms of the IA. You may then move to the HC for change in the visitation right and to claim custody.

2. You will then have to move to the HC in appeal

3. For any modification in the order you will have to move to the HC

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

1. If the court does not pass judgment on your favour and dismiss the custody suit then your prayer for visitation would also be rejected .

2. You can though prefer an appeal in the high court and during appeal hearing you will get a fresh order for visitation of children.

3. In the matrimonial suit the court does not give any visitation order while the final decision is passed. Visitation rights are interim reliefs which goes once the suit is finally adjudicated.

Devajyoti Barman
Advocate, Kolkata
22777 Answers
484 Consultations

5.0 on 5.0

there is no chance to plead now since now the final WS has been given by you. However, if you want you may give one supplementary WS also, but it is the discretion of the court to consider it or not

If the order does not come in your favor then the only way for you will be to approach the HC

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Dear Client,

Visitation right is already passed by the court, if she is not allowing u, file contempt.

And in the custody petition prayer, u should have mention, any other relief, court feel right to grant.

So, on that base and IA, visitation right will be granted.

If the restitution is allowed than she cannot refuse to stay with u than child surely be come. Question of visitation will end.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. Yes, though you did not explicitly mentioned about visitation rights in your final relief, you can still get it as final relief. If the judge is dismissing your case, ask him to dispose it off in terms of the interim relief he granted to you.

2. visitation rights will be given to you in any case, even if you're not being given the custody. Your Lawyer should be able to pursue this.

3. Even if your divorce petition is rejected and her RCRC is allowed, you'll still be entitled to see your son.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

Plead in the Family Court itself to modify the interim relief granted by it to you.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

If the suit is dismissed your IA will also be rejected automatically. You need to approach high court in appeal.

Secondly if judge dismissed your divorce petition and allows her conjugal rights petition file a memo seeking visitation rights to kid during pending of those two petition.

If prayer don't include visitation rights court is barred from granting anything other that what is prayed for.

Swarnarka Chowdhury
Advocate, Mysore
1879 Answers
5 Consultations

5.0 on 5.0

The Court can still grant you visitation if you alternatively mentioned in your prayer for any order the court may deem fit for justice as the court may give you visitation rights. In case denied then the order can be challenged in high court.

The nature of custody order pending divorce proceeding are interim and can be amended by court from time to time so the court can grant you visitation or custody or it can be further filed or challenged in high court.

Section 26 Hindu marriage Act

26. Custody of children.- In any proceeding under this Act, the Court may, from

time to time, pass such interim orders and make such provisions in the decree as it

may deem just and proper with respect to the custody, maintenance and education

of minor children, consistently with their wishes, wherever possible, and may, after

the decree, upon application by petition for the purpose, make from time to time,

all such orders and provisions with respect to the custody, maintenance and

education of such children as might have been made by such decree or interim

orders in case the proceedings for obtaining such decree were still pending, and

the Court may also from time to time revoke, suspend or vary any such orders and

provisions previously made.

Also you are already granted IA if she is not allowing then can file contempt petition for same.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

You can plead that before court in your arguments or in written submission that she is not allowing to meet your children as order by court but this cannot be enforced via Written Submission this can be done for sympathy of court only.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Why didn't you include visitation in your prayers. You can still amend your prayers and get visitation included.you will get visitation anyhow. Court will not deny the same

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

1) you can amend your petition and seek visitation rights

2) you can seek joint custody of your child

3) overnight access of child during weekend

4) if you have not sought visitation rights court may not grant you the reliefs

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

You can amend reliefs sought by you in your custody application

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

You have to file a contempt appeal in the same court for not honouring the judgement by the wife.

This is easiest way out.

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

1) If your divorce case is dismissed and her RCR allowed than you may think on it, why think only visitation, you will get chance to live with your family again.

2) You can get it visitation rights. See what happens on Monday its totally depends upon judge mood how he/she pass justice.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

Will I get visitation rights when I don’t seek them in any of my prayers ?

If you have filed an IA seeking visitation rights, then the court will hear both the sides and pass orders on that application.

By the way, the court will not pass orders on the main petition without conducting trial in any case.

You have stated that you have filed written statement.

But after this, the petitioner's enquiry will be held and the cross examination of petitioner and prosecution witnesses and defence evidence will be undertaken, after which the court will hear final arguments before passing any order.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

I have filed IA before 1 year and for that the visitation orders are passed and that was not complied by my wife, now how to ask for appropriate time, duration, place and other access like school attending? For all this do i have to approach HC or is there any chances to plead now?

If the court has already passed an order in your favor in the IA sanctioning visitation rights what prevented you from approaching the same court for relief when she disobeyed the court order by not allowing you to visit the child

Did you make an attempt to file contempt of court action agaisnt her?

You could have at least filed a petition to struck down defence by her in the case.

At least now you may try to execute the court order of visitation rights as per provisions of law.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. You should get visitation rights. Be there when the order is being dictated. If she forgets, you can remind her.

2. Press upon visitation rights. Write emails to your wife, send her messages, build a record of her refusal to provide access and then file for execution of orders.

3. Then you have the right to stay with your kids.

4. Its too late to plead now. The pleading should have been done at the time of arguments. Nevertheless all orders pertaining to children are interim in nature. You can approach the Court later to modify the orders.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer