• Child custody strategy

Dear All,
Need good advise. Wife left matrimonial home in Sep-2014, along with kids, and does not want to return. Currently wife staying in different city far from my city. Have 2 kids - one is 5.3 years (daughter) and other 2 years (son). Wife forcibly took away daughter in middle of daughters school session did not enroll her to any school in last academic session/year. This year in Feb-2015 she is enrolled to a new school. Filed RCR on July-2014 and as of now got 2 dates but wife did not appear. So it seems it will be ex-parte. Some people are suggesting to add a child custody petition along with RCR. 
 
Question is which of the following would be good: 
1) Will it be a good strategy to add child custody petition to the ongoing RCR and then probably file an execution petition and get the children? Does RCR decrees allow child custody? If yes, Can anyone please help with a citation where RCR decree along with child custdy was awarded and the father brought his children back after getting the decree? 
 
2) Will it be better to file the child custody in wife's city as the kids are residing there.
 
3) Or will it be better strategy child custody after getting RCR decree  u/s 12 r/w section 25 of GWA for child custody with an interim application for visitation rights .  For your reference please find section 25 of GWA which says forceful removal of kid.
25. Title of guardian to custody of ward.-
(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the 1[ Code of Criminal Procedure, 1882 (10 of 1882 ).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.
Asked 1 year ago in Family Law from Pune, Maharashtra
Religion: Hindu
1) you can in your RCR proceedings make application for child custody . 

2) the objective being to avoid multiplicity of proceedings 

3) in the alternative you can make separate application for child custody in the city where children are residing 

4) these days courts in some cases have awarded joint custody of children to both parents wherein mother is granted custody for 83 days and father 182 days in ayear 
Ajay Sethi
Advocate, Mumbai
23334 Answers
1220 Consultations
5.0 on 5.0
1)if you want to avoid multiplicity of proceedings you can in RCR proceedings claim child custody 

2) court can  pass orders of child custody in RCR proceedings to avoid multiplicity of proceedings between husband and wife 

3)if you  can afford litigation and dont mind spending on legal fees obtain RCR decree then file for child custody where the kids are residing 
Ajay Sethi
Advocate, Mumbai
23334 Answers
1220 Consultations
5.0 on 5.0
Restitution of conjugal rights and custody of child are two different reliefs in a matrimonial dispute. So better to file separate petition for custody of child. Guardian and wards card are empowered to determine the issue of child custody.
1.	Permanent Custody
2.	Interim Custody
3.	Visitation Right
Prime Criterion before awarding final custody in favour of one spouse as against the other is WELAFRE OF THE CHILD.During the dependency of the suit you can also get the interim custody of the child .Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights.
So better to file the case in the city where children are residing .

Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1) Will it be a good strategy to add child custody petition to the ongoing RCR and then probably file an execution petition and get the children? Does RCR decrees allow child custody? If yes, Can anyone please help with a citation where RCR decree along with child custdy was awarded and the father brought his children back after getting the decree? 
Child custody petition to be filed under guardians and wards act .  In the rcr case you can file an IA seeking visitation rights to visit the child as per the program you have chalked out in the said ia. 


2) Will it be better to file the child custody in wife's city as the kids are residing there.
The child custody case can be filed  in the jurisdictional  place where the child resides now.




 
3) Or will it be better strategy child custody after getting RCR decree  u/s 12 r/w section 25 of GWA for child custody with an interim application for visitation rights .  For your reference please find section 25 of GWA which says forceful removal of kid.
You have to file a child custody case under the provisions of Guardians and wards act only. 



1) What is the advantage / disadvantage multiplicity of proceedings. Is there any precendent (citation) where judge gave child custody in RCR case. 
Child custody case can be filed only at the place where the child resides. 


2) Shall I file child custody, after RCR decree, in my city u/s 12 r/w section 25 of GWA as the kids were forcibly removed from my flat in middle of academic session of daughter (son is not in school yet)
You can file  a separate case for child custody under the GW act in the court within whosejurisdiction the child resides.




3) Shall I file child custody in wife's city where the kids are residing after RCR decree
Question repeated, please see above for my reply
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
Hi sir/madam, you have to file separate case G&WC case for custody of your child. But naturally mother and father are natural guardian, you have only visiting rights to you. If you prove to incapable of maintenance of the child by the wife at that time  you will get order of custody in your favour. 
C. V. Jadhav
Advocate, Bangalore
262 Answers
3 Consultations
3.8 on 5.0
You are repeating your questions by putting it in different forms.  
First of all you should be aware of teh fact that you cannot file child custody from your place and it can be filed only in the place where the child resides, that will be territorial jurisdiction.  
The RCR exparte decree cannot nullify her DV act and 125 cr.p.c. cases automatically.  You have to contest them and explain your position that you were ready to take her back and to evidence that you have already filed a RCR case to which she chose not to contest hence it is she who has abandoned the matrimonial house and the relinquished her rights on her own hence she is not eligible to claim maintenance under section 125 cr.p.c.and also there is no evidence  of domestic violence  against her but she with an intention to avenge, has foisted this false case.   This cannot be understood by court on its own until you explain the court through your counter and deposition of evidence.  Therefore whether or not, you cannot avoid multiplicity of proceedings, hence realise your position and act wisely instead of moving in a wrong direction on  some misguidances.

The RCR decree will not protect you from the criminal cases or its onslaughts against you.  It will be considered as a gimmick from your side in  order to avoid offering maintenance to your wife, hence it is not of any use, neither she will be obliged to move into your house by force or law just because you have an exparte decree that way. 
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
1) your wife is at liberty to file 498A and DV cases even if you file RCR 

2) even in RCR filed by you she can claim maintenance 

3) court will entertain her application to avoid multiplicity of proceedings 

4) DVcase won't be dismissed merely because RCR is pending 

5) take RCR decree if you are confident of obtaining orders in one month time then file child custody case 
Ajay Sethi
Advocate, Mumbai
23334 Answers
1220 Consultations
5.0 on 5.0
You think wise more than a practical side approach .But it does not work properly in life. You have to face and contest the cases arising in future. But remember that there is no retakes in life and the time run fast in life and we become aged. Settle the matter amicably. 

IF your wife not appear after serving the notice to her ,your RCR petition will decree with in five siting of the court. But there is every chance to setting aside the exparty decree in any time with delay condonation petition. 

Providing maintenance  to wife and children is the duty of the husband . No one can escape multiplicity of case ,if other side file cases against us. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. Seeking custody or visitation in RCR proceedings is going to be futile. If you want to have effective custody or visitation then file a separate case of child custody. Do not bother about citations as they do not help in the court, more so in cases of child custody, which you will come to know during the course of proceedings.

2. The child custody case has to be filed where the kids are residing now.

3. The more you delay filing for child custody the more unlikely it is that you will get the custody of child. You have culled out many provisions of law for our ready reference, but your approach is theoretical which will not work in the court. Adopt a pragmatic approach if you wish to succeed.

Ashish Davessar
Advocate, Jaipur
18170 Answers
449 Consultations
5.0 on 5.0

1. The only disadvantage of multiplicity of proceedings is that you have to run to more than one court at the same time and you have to shell out more amount of money on your lawyers. I cannot think of any advantage.

2. You can file for child custody before or after the RCR decree. It will not have any bearing on the claim itself.




Ashish Davessar
Advocate, Jaipur
18170 Answers
449 Consultations
5.0 on 5.0

1. If she files false cases then you can seek pre-arrest bail to preempt your arrest. There is no way to stop her from filing the case.

2. RCR in normal course will not be an interim decision. It will be the final judgment of the court, albeit it my be contested or ex-parte, which will place an absolute embargo on your right to seek custody in RCR proceedings. RCR decree will offer you no protection from the liability to pay maintenance.
Ashish Davessar
Advocate, Jaipur
18170 Answers
449 Consultations
5.0 on 5.0

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