• How to modify child custody order across USA and India

Me/ex-wife got married in India as per Hindu rituals. Got divorced in US after 8 years of marriage. Both of us are naturalized US citizens and have OCI, daughter (now 13) was born in the US. 

After divorce, ex-wife moved to India because she didn't work and took daughter with her. I agreed to 100% physical custody because of their move to India. I visit my daughter once/twice a year. Today my daughter called from a neighbor's phone because her mother beat her. I talked with the neighbor (who has similar age daughter) in detail later on and found out that my daughter is being mentally and physically abused. Ex-wife does not work and has no intention of working and is living off the child support I provide every month.

Considering that the divorce decree was done in the US and she has full physical custody, what are my options to get my daughter back legally? I'm ready to bring my daughter back any given day and don't want her to suffer for another 5 years till she turns 18 because this may have devastating effects on her for the entire life.

1. Do I need to file a custody modification here in the US? considering the other party (ex-wife) is in India, this would be problematic if the court wants both parties to be present?

2. Is filing a case for modification in India a viable option? I have no idea if that verdict will be applicable here. 

Please advise.
Asked 1 month ago in Family Law
Religion: Hindu

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18 Answers

1. In a long line of judgments it has been held by the courts in India that even final orders pertaining to child custody/visitation are not beyond the pale of reversal due to subsequent change in circumstances as the predominant consideration is always welfare of child. On many occasions even final orders have been modified by the courts due to change in circumstances. I myself can recollect at least 4 such cases where I was a lawyer.

2. Mother beating the child is an act of cruelty and is unbecoming of a mother who claims to promote the welfare of child.

3.  Foreign decree cannot be modified in India albeit you are free to file petition for child custody in the competent court in India.

4. Filing of a Habeas Corpus Writ Petition may be an even efficacious remedy to begin with.

Ashish Davessar
Advocate, Jaipur
30743 Answers
901 Consultations

5.0 on 5.0

-  If the child care is not taken properly then you have remedy.

 

-  You can apply for it in USA also since daughter is US citizen. 

But it will be better if she can call US embassy or you take USA embassy help in India. 

 

-  For the welfare of child, you can get custody of your daughter.

Verdict of India is enforceable because you have to bring daughter from India itself.  

Ankur Goel
Advocate, Bangalore
311 Answers

4.9 on 5.0

Dear Concerned, 

As you agreed to 100% custody in US to the mother, modification in her absence will not be possible. Moreover the child is in India. Here are two options. 

 

1. File a Writ in Supreme Court of India through an advocate in India for immediate child custody more so when the child is a US citizen and is being harassed mentally and physically. (Hope you have the recording of the call from your daughter)

 

2. Consult a Local Counsel in US and file a protection writ in US for the child being a US citizen, and take the custody of the child from mother through the US Consulate route. This would be faster process than the point 1. 

 

Best of Luck  

Atulay Nehra
Advocate, Noida
1276 Answers
58 Consultations

5.0 on 5.0

1) Since custody order was passed in US make application for modification order in US 

 

2) in alternative you can apply in family court in India 

as child is residing in India 

 

Ajay Sethi
Advocate, Mumbai
83174 Answers
5337 Consultations

5.0 on 5.0

As per the Indian law, i.e., the Guardians and Wards Act, 1890, the Court where the child 'ordinarily resides' would have jurisdiction to decide the issues of guardianship and custody.

 

File a custody petition in the local Indian Family Court in the city in which your child resides with her mother. 

Vibhanshu Srivastava
Advocate, New Delhi
9313 Answers
201 Consultations

5.0 on 5.0

Dear Sir,

1) As the custody order was made in US you should apply for modification in US court itself based on the fact that if substantial changes in the other parents lifestyle threatens to harm the child and cruelty against child who is us citizen. 

2) In alternate you will have to apply for guardian ship under guardianship act, for physical and legal custody. As mother only has superior right to custody till child is 5 yrs. The court will decide on grounds of welfare of child.

Thank you

Anik Miu
Advocate, Bangalore
1884 Answers
22 Consultations

4.9 on 5.0

1. a mother can lose custody of her child if she is an unfit parent. Serious neglect, violation of an existing custody order, child abuse, and emotional instability can be used as grounds to end a mother's custody rights.

you can only ask to have a final custody order modified if there has been a substantial change in circumstances since the order was issued and changing the order would be in the child's best interests

5 Reasons a Judge Will Change a Child Custody Order

  • Physical Relocation. The noncustodial parent can reach out to the court to modify custody if the custodial parent moves. ...
  • One Parent Refuses to Follow the Custody Terms. ...
  • The Child's Needs Have Changed. ...
  • A Parent's Situation Has Changed. ...
  • The Child Is in Danger.

Hence you can apply for modification of the child custody before the same court where this decree was passed.

 

2.  It would be advisable to file the proposed case in UIS itself and get the decree executed in India. 

Supreme court strictly ask the mother to return the child and to obey the US court order.

Indian courts now settled the proposition of law in child custody as (i) A parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing.

(ii) Contention that the American court, which passed the order/decree has no jurisdiction and being inconsistent in Indian Laws can not be executed in India - Contention not tenable.

In the custody of child Welfare of child is to be the paramount consideration -

Removal of the child from its native land to another country where his native language is not spoken, child being divorced from the social customs and contacts to which he has been accustomed, interruption in his education are some acts which could psychologically disturb the child.

 

T Kalaiselvan
Advocate, Vellore
73275 Answers
1146 Consultations

5.0 on 5.0

- Yes, you can file an application for the same on the ground of cruelty etc before the same court where the custody of child was decreed 

- Further, as per the Guardians and Wards Act, jurisdiction of custody can be entertained before the court where the child is presently residing . 

- Hence, you can file a petition in India with the help of a lawyer in the family court for getting the custody of minor child. 

Mohammed Shahzad
Advocate, Delhi
7410 Answers
78 Consultations

5.0 on 5.0

You will file custody modification petition in US which is better than which filed in India. Indian courts are not binding on US court decree. You can use the US decree as a document here ,but when you think about to change of circumstances it is better to file there. 

The same time if you wish you can file a new custody application here in India due to change of circumstances..Fathers in India has to face a terrible truth that a minor child custody will be undoubtedly awarded to mothers, unless proven that she has neglected her child. Most fathers don’t want to confront the issue, not realizing that they put themselves in more vulnerable state and at loss during divorce proceedings, especially while fighting for child custody and support.Custody in India is not a hard and fast issue, and judges decide on a case-to-case basis. It is not always necessary that if you are of unsound economic condition or have some other problems, you will not be given custody. The courts keep in mind the mental satisfaction of the children and their best interests. After a divorce, the husband may be ordered to pay maintenance to the wife, which can also be used to bring up the child.

Ajay N S
Advocate, Ernakulam
3887 Answers
82 Consultations

5.0 on 5.0

1. File a child custody case in India on the please that  welfare of your child lied better with you in USA and also as se is a citizen of USA.

 

2. You can also pray for interim custody of the child till your case is disposed of.

 

3. You have a very fare chance to win her custody if your daughter  testifies before the Judge that she is being regularly tortured by her mother and she wants to stay with her father.

Krishna Kishore Ganguly
Advocate, Kolkata
25841 Answers
726 Consultations

5.0 on 5.0

She can do video recording of abuse faced by your daughter 

 

2) it would be admissible in evidence 

 

3) she can also give in writing abuse faced by her 

 

4) emails are admissible in evidence 

Ajay Sethi
Advocate, Mumbai
83174 Answers
5337 Consultations

5.0 on 5.0

Dear Sir,

1)  In US court of law admissible evidence is any kind of tangible evidence that can help prove your point in a case. This can include testimonies, documents, photos, videos, and other forms of physical or digital evidence.

2) you can ask for video evidence or documentary evidence both will be admissible. If daughter has mobile she can record mothers misbehavior as well. Emails are also admissible.

Thank you

Anik Miu
Advocate, Bangalore
1884 Answers
22 Consultations

4.9 on 5.0

1. Yes, your daughter's video recorded complaint against the torture of her mother on her will be accepted by the Court as digital evidence.

 

2. Yes, you can also ask your daughter to write down her complaint in details and send it to you through the neigbour.

 

3. Your assessment that she is mentally deranged, made from her email sent to you might not be accepted by the Court. It will ask for medical report in this regard which you do not have.

 

4.  Any video recording evidencing that your wife is torturing your daughter will be excellent, if it can be taken with the help of spy camera.

Krishna Kishore Ganguly
Advocate, Kolkata
25841 Answers
726 Consultations

5.0 on 5.0

Meet the previous us lawyer / attorney and discuss about the present situation. Convince the present situation before court you can get a desirable order from the court. Emails, phone records, are use as evidence. If possible record the childs video and present before court

Ajay N S
Advocate, Ernakulam
3887 Answers
82 Consultations

5.0 on 5.0

1Yes, a video recording is an admissible evidence before the court , hence you should ask for recording by any neighbours etc. 

2. Your daughter can give a compliant before the local police with the help of that neighbour or even she can authorise the neighbour to lodge a compliant on her behalf. 

- Such compliant are very much admissible in the court. 

3. Yes, this email can be produce in the printed form before the court 

4. Inform your daughter to file a compliant in police with the help of neighbour or prepare a handwritten compliant and handover to the neighbour to submit the same in the local police 

Mohammed Shahzad
Advocate, Delhi
7410 Answers
78 Consultations

5.0 on 5.0

1. You can have the episodes video recorded in order to produce it before court. 

If your neighbor is cooperative you can ask her to get it recorded and forward the same to you which you can secure as an evidence for all such further legal actions.

2. Not necessary because your daughter is very minor by age and that may sometimes may not be considered as an evidence  or it can even be termed a tutored evidence.

3. The emails and whatsapp chat messages or the video recordings are considered as substantial evidences in a court in USA but in India there are different procedures to be followed to  establish such evidences. 

T Kalaiselvan
Advocate, Vellore
73275 Answers
1146 Consultations

5.0 on 5.0

1. If the neighbour is willing to be your witness in the court then he is the best witness.

2. Your daughter can also address a letter to your neighbour and it can be led in evidence and exhibited/marked as well.

3. E-mails are also admissible, but admissibility does not grant a veil of approval to the contents of the conversation.

4. Instead of going through the long route of filing a suit, the better remedy is to file Habeas Corpus first in the High Court,

Ashish Davessar
Advocate, Jaipur
30743 Answers
901 Consultations

5.0 on 5.0

1. Yes, it is very much admissible in court. It is enough to call police also. 

2. You can do this also .

3. Emails are admissible but they can not prove what you want to prove.

4. Your daughter seeing neighbour help.
Better you should be in India to help her.

Ankur Goel
Advocate, Bangalore
311 Answers

4.9 on 5.0

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