• Can I apply for child custody before filing for divorce?

My sister is having trouble in her marriage. Her husband is alcoholic and violent. They have a daughter. My sister wants to go to her home but he doesn't let the kid go with her. She can't leave the kid with him as he is alcoholic. But since he's voilent, she wants legal assistance in getting custody for child so that she can go to her own home and then file for divorce with the help of parents. Is there any way legally where she's allowed to keep kid with her until the divorce finalizes and actual custody is decided by court?
Asked 3 years ago in Family Law
Religion: Hindu

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18 Answers

1. Don't leave the matrimonial home leaving the children behind as in such case in custody suit she would never get them back. 

2. Her husband must not been watching her 24 x 7. So given an opportunity she can flee from her husband's home and take the children along. 

3. Thereafter she can file a suit for divorce.  Let her husband file a suit for custody in which she can easily retain the children with her. 

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

She has to daringly take the child with her while leaving her matrimonial home. 

She can wait for the opportunity during his absence at home and flee his house. 

After reaching back at her paternal home she can file divorce case and also seek police protection if he is still troubling or torturing her. 

 

T Kalaiselvan
Advocate, Vellore
84722 Answers
2172 Consultations

5.0 on 5.0

She should leave the house quietly when her husband is not present in the house. Then she should file a domestic violence and cruelty cases against him. The divorce petition can be filed where her parents live.

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

She can file divorce on grounds of cruelty as well as petition for custody and then demand custody on grounds of his alcoholic nature

Prashant Nayak
Advocate, Mumbai
31807 Answers
176 Consultations

4.1 on 5.0

File a case under DV Act.

Swarupananda Neogi
Advocate, Kolkata
2963 Answers
6 Consultations

4.7 on 5.0

Welfare of child is paramount consideration 

 

2) wife can call police helpline for assistance and leave her matrimonial home with child on account of husband abusive behaviour 

 

3) file for divorce on grounds of mental cruelty and seek sole custody of your child 

 

4) seek interim maintenance and alimony from husband 

Ajay Sethi
Advocate, Mumbai
94523 Answers
7486 Consultations

5.0 on 5.0

Yes. 

Your sister may file application for custody of daughter even before filing of divorce petition. 

In case of female child custody upto the age of 5 years the mother gets exclusive custody of female child as per law.

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

5.0 on 5.0

If the child is daughter than in most of the cases custody remains with mother. As of now she can make a complaint in the nearest police station under women cell.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

Ask your sister to firstly collect some substantial proofs against her husband. 

Thereafter ask her to somehow manage to come to her hometown with the child and immediately file a petition for custody of child. 

If the child is less than 5 years old, the court will definitely grant interim custody to the mother. Even otherwise the court will look into the best interests of child and if it is satisfied that the father is violent and alcoholic it will grant the custody to mother.

 

Agam Sharma
Advocate, New Delhi
617 Answers
6 Consultations

5.0 on 5.0

Bache ki age kya h

Roshan Khatri
Advocate, LUCKNOW
138 Answers

Not rated

She should file a child custody case along with the interim relief application for getting the full custody with the help of law.

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

Dear Client,

After filing divorce petition, you may file an application for the custody of the child.

Jaswant Singh
Advocate, Gurugram
929 Answers
2 Consultations

4.8 on 5.0

She can take assistance of police to take child with her.

Cusdoty of child stay with mother only. She dose not need to apply for cusdoty of child. She can take assistance of police, women cell etc.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

-  As per law, even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.

- The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

- Hence, being mother of baby child, your sister is the only & fit to get full custody legally, and specially when her husband is a drunker. 

- Your sister can file a Divorce petition before the court on the ground of cruelty and custody of child as well. 

Mohammed Shahzad
Advocate, Delhi
13105 Answers
195 Consultations

5.0 on 5.0

1. Yes she can file petition for custody of her child but that will be a long process and till than her child can he stuck with his father due to stay from court. 

2. She should make a complaint to local police station or women cell of police for taking help to leave the house with her child on ground that he is alcoholic and causing physical cruelty to her and her child. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

Dear Sir/Madam,

You are suggested the case of child custody is independent to that of divorce and the same can be filed before the divorce case. 

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

there is a way you can take custody of our child before the divorce.This can be done by guardian op. The court will think about the welfare of the child.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Yes she can file for custody of the child further, prove the attitude / habits of her husband to the court, which will be considered in her favor in granting the custody of child.

Accordingly she can apply for divorce after reaching her parents house

 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

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