I have a rcr put up by my wife against me in family court. I have given a written purshis that I am ready to go back and stay with her. Decision pending. I want to be the key decision maker for my daughter. I am about to file a custody case for my daughter. Is the custody case admissible if the court agrees to my purshis and allows me to stay with my wife? I want to be the key decision maker for my daughter even if I am staying with my wife. P.S. there is no divorce case pending in any court of law against me or by me. I also have none other cases registered against me.
If you have given your consent in RCr case to take her back then obviously the question of custody will not remain if the rcr is allowed.
custody case is filed when the couples are staying away and the child is with one of the parent.
if you have given your consent to live together then I don’t think that the court will give any other decision.
regards
Yes. Custody case is maintainable. And only when sole custody granted to you, you can take all decision pertaining to your daughter.
Quite possible court may grant partial decision authority even if your custody application decline.
If the rcr application has been filed and you intend to stay with her then there cannot be a separate custody. You may be the decision maker but your wife may object if she is temperamental.
Custody case is not admissible when you are living together.
If you both staying together the question of custody doesn't arise. As if both of you are not staying together then court mat decide custody of child
1. IF RCR is allowed in your favor, THEN there is no question of Child Custody petition.
2. In case IF RCR is not allowed and Child is below 12 years and Wife is financially & mentally capable, THEN child custody will remain with Wife.
3. You are advised to maintain amicable patience with wife consequent to favorable RCR (which is typically granted) and hold on for few months, before making aggressive decision /planning about Key Decision maker for child.
If both are staying together after decision in RCR case then your custody case would become infructuous
both have to take decisions jointly for welfare of child
welfare of child is paramount consideration
1. RCR or Divorce has no nexus with child custody. Even without having filed RCR or Divorce either parent may file petition for child custody.
2. Child custody petition will be decided on the touchstone of welfare of child.
1. If the decree of RCR is oassed on consent of both parties tfe suit for custody would become infractuous unless it is established tfat she is not complying with the decree by staying together with you.
2. Decision of child is be taken bt both parents unanimously. Neither of the parents can be allowed to be ' key decision maker '.
In a matrimonial dispute the best option is settle the issues amicably. Whenever settle the matter you may live with her. No need for court order for that. When you settle the matter then there is no need for custody and if filed custody application it would become infructuous . Welfare of child is paramount consideration in custody application.
Yes it is possible that you carryout a custody petition while living with your wife.
Hi, yes you can file for the custody of your daughter ..However ,if you are willing to stay with your wife ,then the custody remains with both ..Custody is demanded only during separation or divorce..You can file for custody, which will put pressure upon your wife to reunite
If you want to be the key decision maker of your daughter than you must live with her. And custody of girl childs are mostly with mother's.
RCR or Divorce case has no bearing on the Child Custody application.
However, if the RCR application is decided and if both of your are living together then the child custody application becomes infructuous.
Thus, if court considers your written purshis and directs you to stay with your wife, child custody application goes.
The child's welfare is of paramount importance, it is the duty of both the parents to look after welfare of child.
Agreed, even if you want to be key decision maker of your daughter's welfare, involve your wife also in the decisions, so as to avoid complications.
Pl provide full facts.
What is age of your child?
What is your occupation and what does your wife do?.
What is rcr?
Custody case can be filed even if there is no divorce or RCR petition pending though court may not decide on point of key decision maker when you are staying along your wife as firstly welfare of child is primary and both parents has equal rights.
Hello,
- Under Section 9 of the Hindu Marriage Act, Law provides that when either husband or the wife withdraws from the society of the other, the aggrieved party may apply to the Court for a direction that the other party should live with him or her.
- Since, you have given a written purshis that you are ready to go back and stay with her , hence the custody of child case will not maintainable legally.
- However, you can amicably settle the matter of key decision maker of your daughter , after moving an application for the same in the same court , from where the decree of RCR is going to passed.
Hello Sir,
It is evident from the above facts stated by you that a petition for Restitution of Conjugal Rights have been filed and as per the written statement filed by you, you have agreed to go back to her and stay with her.
Now the most important part is you cannot claim custody of the child as you have shown your willingness to stay with her and such willingness can be used against you in a suit for custody of child and the suit would be dismissed.
Further if you get back to live with your wife, the custody of the child would automatically be with you and it would be a situation of co-habitant and there is no need to filed the suit for custody of the child. But if there are chances that the suit would continue over a period of time and you want the custody of child immediately, then you can move an application for the interim custody of the child and the court may grant the permission subjected to some conditions imposed. The Court may also reject your application if the court doesn't think its fit to grant the interim custody. It is the sole discretion of the Court to allow or to dismiss the interim custody of the child.
I hope I am able to provide best answer to your query. Please give a feedback and rating to me as that would help me growing and serve you better in future. If you have any further query you can ask by raising a follow up question.
Thanks and Regards!
Varun Talwar, Advocate Delhi High Court
Respected sir ...
Yes sir it is your right you can file a case for custody of your child and I appreciate your decision that you made in RCR case ..sir both case are separate so you need not to worry ..just file the custody case you will surely will that on merits...
Thank you
Dear Sir,
You are suggested to get the case transfer to mediation and counselling center of Court and get the conditions registered for finalisation of the case.
If you agree to take her back and she withdraws the RCR to rejoin you then there is no question of filing child custody case, becasue the child will also return to your home along with her.
So what is your problem on this?
The child custody case may not be necessitated if you both rejoin and start your broken marital life once again.
1. Yes custody case will be admissible even if you are living with your wife.
2. Chances that court allow your petition are not good because law doesn't take away any parent right to take decisions for his or her child.
parents can decide on which parent will have final decision making authority.
Dear Querist
you may file an application under section 26 of HMA or may file a child custody petition for the appointment of the guardian of the minor child, there is no requirement for the RCR or divorce case, all the cases are separate from each other.
In child custody cases the court has to see only the welfare of the child and if you proved before the court that you are the best person for the welfare of the child then the court may appoint you the legal guardian of the minor child.
