• Custody of child

I have gone through a mutual divorce in 2014 and have been divorced. Though my child is living with my wife, no where in the divorce decree is it mentioned that the custody of my son has been given to her. My son is 8 years old and he has been staying with me off and on. I pay for his education and other expenses too. I have also for limited period of time paid a fixed amount every month to my ex-wife. While he was an infant for a long period of time my ex-wife was not staying with him and he was with her parents. She is financially not capable to pay for his education. she has admitted the same. Can I file for the custody of my child now or even for a joint custody?
Asked 2 years ago in Civil Law from Kolkata, West Bengal
1) consent terms should have provided for joint custody of the child 

2) if your wife is not objecting to child staying with you don't apply for custody of child 

3) if wife objects apply for joint custody of the child 
Ajay Sethi
Advocate, Mumbai
36458 Answers
2026 Consultations

5.0 on 5.0

1. Yes, you can file a child custody case seeking custody of your child since he is more than 5 years old,

2. Mother is the natural guardian of child till he/she is 5 years old,

3. You shall have to show valid grounds for seeking the custody of your child establishing that he/she will be better maintained/kept/up-brought if your custody is allowed by the Court,

4. Child's welfare is tye prime consideration while deciding about his/her custody.  

Krishna Kishore Ganguly
Advocate, Kolkata
15522 Answers
377 Consultations

5.0 on 5.0

File a Suit for Custody of Child under Wards and Guardian Act in District or Family Court with a prayer of Visitation Right for the welfare of child.
Minansu Bhadra
Advocate, Kolkata
268 Answers
25 Consultations

4.8 on 5.0

You can very well file a petition before court seeking custody of your child under guardians ans wards act.
You can draft the pleadings convincingly explaining the plight of your son due to your wife's inability to take care of him as well his education  and the expenses thereon.
You  may plead that most of the time her parents are looking after the child hence as a biological father and natural guardian  you have all the rights for custody of your child especially under such a hapless situation. 
T Kalaiselvan
Advocate, Vellore
26421 Answers
268 Consultations

5.0 on 5.0

It is the duty of the husband to provide money for maintenance to wife and Child. Nothing is not mentioned about the custody of child in divorce petition is not a bar for filing a new petition for custody of child. Try for a settlement in the custody of child with wife. If she is not amenable then file custody of child and seeking visitation right 

Child's welfare is the prime consideration while deciding about his custody.
Ajay N S
Advocate, Ernakulam
2479 Answers
30 Consultations

5.0 on 5.0

If the divorce decree does not attend to the issue of child custody then you are at liberty to file for the custody of child. The concept of joint custody has not yet hit the Indian legal shores. You can seek exclusive custody of your child. A person who is incapable of promoting the welfare of child is disentitled to get his custody.
Ashish Davessar
Advocate, Jaipur
21587 Answers
578 Consultations

5.0 on 5.0

Yes, you may file a child custody case before district court/family court where the child is ordinary residing under Guardian & wards Act along with Hindu Minority & Guardianship Act.
There is very strong chance to win the case.
Feel Free to Call 
Nadeem Qureshi
Advocate, New Delhi
4346 Answers
193 Consultations

4.9 on 5.0

Hi, While considering the custody of the child the court will consider the welfare of the child is the paramount consideration if you able to prove the same before the court that at your custody the child will live with happily then court will grant custody of child. 
Pradeep Bharathipura
Advocate, Bangalore
4372 Answers
182 Consultations

4.3 on 5.0

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