• Not divorced but separated couple

Hello Sir/Madam,

Good Morning.!!

We have a situation in the family where a couple got separated. Now there is a fight on, with whom should the girl child live with.
Currently the child is with her mom but the father is asking to send her to him during the vacation.
But the girl's mom is worried as he may create problems by not sending the child back to her after the vacation. 
The couple is separated as there is a lot of domestic violence from the man.

We are not opposing the father to visit the child or take the child for vacation but we are really worried that he creates problems and start troubling, once the kid is with him.

How can we legally make sure he sends the kid back to her mom after vacation? Can we do this with some kind of an agreement before sending the kid to her father for a visit?
If yes, What kind of action can we take if he fails on the agreement?

Please advice..

Thank you.
Asked 4 years ago in Family Law
Religion: Hindu

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22 Answers

Yes, this arrangement can be recorded in an agreement or in an undertaking.

If he fails to send back teh child after the vacation despite signing an agreement, you will have legal recourse against the man.

Or in case the mother is too apprehensive, she must approach the Court and file an application under Guardians and Wards Act, seeking permmanent custody of this girl child.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Firslty, as per the information mentioned in the present query, makes it clear that the mom is and must be worried about the child wellness.

Secondly, there may be three options available to you:-

1.) That you entered into an agreement with him through Notary that he would send the child back once he vacations are over.

2.) That you may ask him to go before the court for visiting rights and state everthing that he would return the child after the vacation only then you would send the child along with him.

3.) If he violates the second option then court would held him for contempt of court. And if violates the first one then file Habeaus Corpus Writ in the High Court and get the child forever (may be possible that he would loose all further rights not the child).

Good Luck...!

You may contact me for any further help through Kaanoon.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

The best course for you is to ask the father to file a petition for visitation rights from family court.

Once, specific orders have been passed by the court in this regard and he will fully disobeys, he would be guilty of contempt of court and would lose the custody of the child permanently, or a lot of restrictions would be posed on his visitation.

Any such agreement where in he promises that he would return the child after a certain amount of time would be valid but contempt of court would not be attracted as well as it would take time for you to prove the document in court.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

Hi,

You may enter into agreement and the same may be enforceable in the court.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

parent can file a petition for child custody and support and request that the court assign one parent as the custodial parent and the other as a non-custodial parent with visitation rights.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Agreement can be done out of court also.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Mother may deny father request to send the child during vacation

2) ask father to visi the child during weekends if he so desires

3) in alternative obtain in writing from father that he would return the child after one week of vacation and that mother would have sole custody of child

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Yes, the options suggested are applicable to a separated couple as well.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Mother can refuse to send child during vacations or obtain in writing from father that he would return child after period of one week

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Custody and divorce are two different things.

Yes it is possible to ask for the custody of child without divorce proceedings.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

See for now a memorandum for understanding can be made between the mother father for the visitation on vacation if there is breach of same a custody petition can be filed and the memorandum can be used as evidence to show the arrangement between parents.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes. They are applicable two couples who are separated and not divorced. Custody can be sought, in case of separation too.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

Hello

The couple must take the help of mediation call in the courts. Unless you are divorced or legally separated you cannot seek relief from the court. The girl can go to the court and cite various incidents of domestic violence and on that basis the court will allow the child to remain with either if the parents till the finalization of the case.

These modalities can only be worked out once you go to the court an agreement outside the court has no effect.

Regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

You can file petition for custody of child and can describe what rights father will have on child.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

1) the mother of child can ask for the custody and father can have visitation charges as per the court order. Let this procedure happens in front of court so once the court pass the order all the time fame is mentioned in it.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Hello,

You may enter into and agreement.

But if he does not send the child back then to take the custody a suit has to be filed and the agreement per se can not be enforced.

Though, for having some pressure on the husband you may enter into an agreement.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Yes this option as mentioned above is applicable to the separated couples also.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

How can we legally make sure he sends the kid back to her mom after vacation? Can we do this with some kind of an agreement before sending the kid to her father for a visit?

If yes, What kind of action can we take if he fails on the agreement?

It is an appreciable idea that you enter into an agreement for this arrangement as expressed by you.

But the hidden danger is tht he is not person to abide by any such obligation.

What is he refuses to send his daughter after the completion of vacation, you cannot force him to leave her nor you can take the help of police on such issues, because he is the father of the child having equal rights over the child.

No such agreements are enforceable in law.

Therefore to avoid such risks you may better not to allow the child to be ther with him even during vacation, if at all he is so much interested let him file a child custody case before court and obtain visitation rights as per his choice and desire.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

All these options... are they applicable to the couple who are not divorced?

Because in our case, they are separated but not divorced.

Whether divorced or not they are living separately away from each other due to the marital disputes.

Hence for all such issues he may better approach court for remedy and relief.

Dont entertain any such visitation rights if you suspect him to not to permit the child to be with the mother after completion of vacation.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Legally, unless and until matter is pending in the Court or orders are passed by any Court, both parents' have equal rights over the child. A child in the custody of either of them cannot be said to be in illegal detention. An MOU may not benefit either as it just shows the intention of the parties. Either the mom can accompany the child for the access, claiming that the child is too young to stay separately overnight from her mother, or convince the father to visit the child where she is staying.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

Dear Sir/Madem,

In India if child custody case is filed before family court it will impose certain conditions on the father at the time of sending girl during vacation. You need not worry about safe return of the girl child after vacation as it amounts to contempt of court if father refused to return the child. The conditions will imposed depending upon various parameters even court may refuse vacation visit if mom established that there is danger to the child in the custody of father.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

1. How the couple have got separated? By a Court order or by mutual understanding/agreement?

2. If the separation is not through any court order, then the mother need not send her child to her husband unless he files a child custody application or any application seeking custody of the child during the vacations.

3. Based on the said Court order, the child can be allowed to be left with her father during vacation and if she is not returned to the mother, an application can be filed before the same court praying for an order upon police to help you in restoring the custody of the child to her mother.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

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